The Employment Rights Act clearly states that it is fair to dismiss an employee for reasons related to “capability”.
An employee off work through long term sickness/illness is incapable of doing the job but the question is – at what stage in a case of long-term sickness absence, is it fair to dismiss?
Whilst the law says “capability” is a fair reason, you must still follow a fair process and act reasonably. You must also establish the true medical condition which may involve a report from a GP and/or a report from an Occupational Health specialist and consult appropriately with the employee before deciding whether or not to dismiss.
Consider the following carefully
• The nature and type of the illness – be careful of conditions covered by the Equality Act
• The prospect of the employee returning to work and the likelihood of the illness recurring
• The need for someone to do that work and the impact on the rest of the team
• Operational disruption to the business
• Does the employee realise their employment could be terminated?
• The employee’s length of service
• How similar situations had been manged previously – is there consistency in approach?
Clearly it is important to understand the underlying health condition, long term prognosis and whether the employee is suffering from a condition which would give rise to a claim based on disability.
If there is a disability you are under a duty to make reasonable adjustments and not discriminate because of that disability.
In addition, before dismissing you should also
• Know the up-to-date medical position (you may need several medical reports)
• Consult fully and carefully with the employee
• Consider the availability of alternative employment or work which could involve lighter duties.
Ask yourself the question – would a reasonable person expect the business to keep the employee’s job open any longer?
If the decision is taken to dismiss, you will run the risk of a Tribunal claim. Whilst you cannot pre-judge the outcome of a Tribunal, the following would be taken into consideration
• The availability of temporary labour cover and cost
• The sick pay situation both Statutory and Company and the cost to the business
• The administrative costs of keeping the employee in your business based on size, turnover of the business
It is reasonable for an employer to conclude that there must be an end point to situations where employees are on long term sick but you cannot download an app (yet!) or go on to google and see what that period of time might be. Ultimately each case must be taken on its merits and every situation will have a different set of circumstances and challenges but it is important to be mindful of how situations in the business have been manged before – precedents?
Medical reports must be comprehensive, up to date and carefully interpreted and independent Occupational Health advice is excellent in facilitating this process.
In answer to the question – what happens if an employee does not consent to you obtaining a medical report? The purpose of the report is to get information to enable the employer to make decisions and if the employee refuses consent, the employer is entitled to make those decisions without the benefit of specialist information.
Long term sickness is clearly not a gross misconduct offence so, any termination would be with notice and often, it is appropriate to manage any termination of employment due to long term ill health via a settlement agreement.
Such situations are difficult to manage and highly emotive and the business will be judged by its employees on how they have managed the situation.
Adrian Berwick provides HR support to business and has considerable experience in managing long term ill health cases. If you want help dealing with a difficult issue, contact Adrian on 07885 714771 or firstname.lastname@example.org