It’s a common thought that employers are expected to keep a sick employee’s job open indefinitely. However this is not the case – although it is necessary to follow a fair procedure to manage a long term absence situation. If you proceed towards a dismissal you will potentially have to show that the dismissal was justified and fair after properly exploring all the options open to you.
What to consider when terminating employment on the grounds of ill health
An employment tribunal will consider if you have followed an appropriate procedure and would suggest you do the following before considering dismissal on grounds of ill health:
• Ensure the absence has been dealt with in accordance with your absence and capability policy
• Keep in touch with the employee regarding their condition and their prospects of a return to work.
• With the staff member’s permission, commission a report from an occupational health practitioner.
• In conjunction with occupational health guidance, formally review the role and the individual’s capability and decide whether adjustments can be made.
• Consider whether there is another job available in the company which the employee could do.
• Consider whether the job can be done part-time with recruitment if necessary.
• Assess the information available and determine whether the employee’s return to work can be facilitated.
• If a partial return to work can be considered, develop an “induction” or phased–in process.
• Keep in contact after a return.
Alternatively, after following the guidance above, in the event that no return to work date is foreseeable or suitable alternative employment cannot be found or reasonable adjustments or modifications to the workplace are not practical or possible, termination on grounds of ill health may result.
An important case in 2017 helpfully made the following points for employers to use when deciding whether to, and how to, fairly dismiss on the grounds of ill health:
• It is not necessarily unfair for an employer to decide that the time has come to dismiss an employee who has been absent for over 12 months with no certainty as to when the employee will be able to return. While an employee can easily advance the argument “give me a little more time and I am sure I will recover”, there comes a time when an employer is entitled to some finality.
• The severity of the impact on the employer of an employee’s continued absence must be a significant element when determining the point at which dismissal becomes justified. A tribunal considering a long-term sickness absence dismissal will expect some evidence of the disruption to the business, although in some cases the impact will be so obviously severe that a general statement from the employer to that effect will suffice.
• It is important that the medical evidence upon which a decision is being made is up to date. Repeated reports may have to be gained through the period of the illness or injury to ensure that changes in the prognosis are taken into account.
Importantly, the Court made it clear that employers are not expected to wait forever for an employee to recover from illness.
However, the court warned employers that, when balancing whether the time has come to dismiss, the employer needs to have considered the disruption to the business that the absence is causing. It is therefore a good idea for the employer to have a written record of the issues that are being caused, for example who has been brought in to cover the work, or what extra work colleagues are doing because of the absence.
Always seek advice before terminating on grounds of ill health as each case will turn on its facts.
Please call me on 07917 878384 or email me firstname.lastname@example.org if you need advice.