Long term sickness absence dismissal: What employers need to knowby AdviserPlus | October 22, 2018
Managing people is not always easy. That’s why the skills and tools needed to really get to understand individuals in a business are so important and HR professionals are key to ensuring the smooth running of a company.
When an employee is off due to a long term sickness, businesses need to strike a careful balance. They need to be able to use their duty of care to good effect to understand why someone is off sick and what, if anything, they might be able to do to help them to come back to work when they’re ready.
With the right balance, business can normally play a part in someone’s recovery. However, that’s not always the case. What happens if relations between a business and an employee who is off long term break down so much that you wish to consider a dismissal?
If this unfortunate situation occurs, then you need to think carefully about how to act in a fair way that will stand up to scrutiny if challenged. Dismissing someone on long term sick leave might not be something anyone wants to do, but if it’s necessary, our guide explains what you need to consider:
How to dismiss an employee on long term sick leave
When dismissing an employee who is on long term sick leave you need to consider the sorts of factors that might come up in an employment tribunal if your decision were to be challenged. It may not get this far – and it’s important not to make the situation adversarial if it can be avoided – but it’s handy to be clear about how you would defend your actions if required.
The sorts of things that will be considered ‘best practice’ here are:
- Following your own absence procedure to the letter, with evidence of how you have acted and when.
- Consulting with the member of staff about their health and their chances of returning to work – with records of the dates of these conversations and what was discussed.
- Commissioning medical reports with the permission of the staff member in question.
- Considering whether changes can be made to the person’s role or the workplace environment to accommodate their needs if they have changed.
- Offering alternative employment within your organisation.
- Outlining how a ‘phased return’ to work might be facilitated.
Essentially, you should see these as a checklist. If someone chooses not to communicate with you while they’re off, or turns down the alternative provisions you’ve offered, then this might be evidence for why you had little choice but to opt for a dismissal.
When it comes to medical reports, you may wish to commission your own report from an occupational health expert. This should be done with the employee’s permission and will allow both parties to get an expert assessment from an impartial outsider about:
- When the person might be able to return to work
- What, if any, adjustments might need to happen to their working conditions for them to come back
- Advice on any long term changes to the way the person can carry out their duties
Their insight – and written assessment – is likely to be a useful document for both parties to consider.
Be careful, methodical and – above all else – fair before you take any action.
Dismissing staff on long term sick: Advice from the Court of Appeal
Every case that goes to a tribunal will be determined on its own merits, but one recent case offered useful advice that employers can apply to all situations.
This came from Lord Justice Underhill when ruling on a borderline case involving a school and a teacher, reported by Personnel Today.
He outlined that:
- It shouldn’t necessarily be seen as unfair for an employee to be dismissed if they have been off work for more than 12 months and have no clear idea of when they will return. Employers are entitled to a sense of certainty.
- A business will be expected to show evidence that their work has been disrupted as a result of the absence and this must be a significant part of deciding when a dismissal is necessary.
- The decision must be deemed fair based on the evidence available at the time of an appeal (e.g. a person’s medical diagnosis and prognosis might change).
The fact that the need for certainty is recognised, that evidence of the impact of the absence will be considered and the need for a fair judgement on up-to-date information might all help to guide you in the way you act.
The Equality Act 2010
Employers looking to dismiss someone on long term sick leave also need to have understood the changes to the law made by the Equality Act 2010.
Essentially, this legislation covered the following areas:
- It clarified the rules on what classes as a disability, offering protection to anyone with physical or mental conditions that have a substantial impact on their ability to go about their day-to-day life.
- It set out the rules around discrimination and the punishments for this.
- It offered guidelines for helping employees who were struggling to maintain their performance levels at work as a result of a disability.
- It demonstrated which questions are acceptable to bring up with a job candidate who has a disability.
It’s clearly important for businesses to stay within the law – and this sort of legislation should be welcomed as it spells out the framework for what should and shouldn’t happen in the workplace. Respectable businesses that take this on board are less likely to encounter problems if they eventually need to terminate the contract of an employee who has been off on long term sick leave.
All businesses need to remember to:
- Keep accurate, up-to-date records of sickness management actions
- Have an understanding of employment legislation and what this says
- Act in accordance with their own policy at all times
- Work with the employee to offer ways in which they can continue their employment
- Take time and be clear that any decision on dismissal would stand up to the scrutiny of a tribunal if this were to occur.