Long-term sickness is difficult to handle. Everyone is susceptible to illness, and dismissals where no fault is involved are always difficult.
Employees who have been away from work on long-term sickness absence often expect their employers to hold their jobs open indefinitely, especially if any sick pay entitlement has been exhausted and the employer incurs no cost by holding the job open. Unfortunately, it is often where employees have been well supported during their absence that employers find themselves in tribunals. People in this situation sometimes find it hard to accept that commercial reality and medical opinion make dismissal necessary and fair.
Can you dismiss?
The ability of an employer to dismiss depends on the facts of each situation. An employee who has an accident rendering them unable to return to work at any time may be dismissed immediately. A more common problem is someone who takes long-term sick leave and then stays away indefinitely.
Employers wanting to remain in control of the situation should get a medical report. Before doing so, they should consult the employee and tell them why one is needed. The report can come either from the employee’s own GP or from an independent doctor, but the employee must give their consent for the employer to see it.
Often employees withhold their consent because they are afraid of losing their job. It should be made clear to them that the purpose is to avoid dismissal and facilitate their return to work. It should also be explained that, if they continue to refuse to allow a medical report, the employer is entitled to make the decision about dismissal based on whatever other information is available.
Where the employee consents to the preparation of a report and its presentation to the employer, it is essential that the doctor understands the nature of the employee’s job and the reason that you need the report. You should ask the doctor for a diagnosis, his or her opinion on the employee’s ability to do the job, and the likely prognosis in terms of return to work. If the report is vague, as is often the case, you are entitled to seek a further medical opinion.
Once you have a detailed report, you can make your decision based on all the available information. This includes the length of absence to date, the size and resources of the organisation and the effect of the employee’s continued absence – as well as medical evidence.
If, for example, the job is in a call centre with a large pool of interchangeable staff, it may be more reasonable to wait for a longer period for a full recovery than if the person is one of a small number of key staff. It also depends on how long they have been away already. If they have already been absent for two years, it may be harder to justify refusing to wait another six months if this is the timescale that a doctor estimates is necessary for a full recovery.
If the employee is not fit to return to their old job, you must ascertain whether there is a suitable alternative job. If they have a temporary disability, the employer will be expected to consider minor modifications to the original job to facilitate the worker’s return to work. This requirement is in addition to requirements under the Disability Discrimination Act 1995 (DDA) to make reasonable adjustments (see below).
The employer is not obliged to create a position for an employee, but often, particularly in larger organisations, there will be other vacancies that can be considered and discussed with the employee. If either party is not convinced about the suitability of the alternative position, a trial period should be used.
Employers also need to consider carefully whether the employee’s illness is classed as a disability under the DDA. This covers anyone with a “physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities”. Long-term means a likely minimum of a year, or their life expectancy, if shorter.
Employees whose illnesses or conditions bring them within the meaning of the DDA may still be dismissed for ill health. But the employer will have to show that they have not discriminated against the employee as a result of their disability. There is an additional requirement for the employer to make reasonable adjustments to a disabled person’s working arrangements.
The DDA is a thorny area. Tribunals can award unlimited compensation to those making successful claims under the act. Not knowing of a disability is no excuse, making it even more important that employers request a doctor’s report.
The act is complex and the fair procedures for dismissal are onerous. Often, tribunals are sympathetic to employees dismissed owing to ill health, so it is essential to seek proper legal advice when dealing with these issues.
- Effective consultation
- Explain as fully as possible to the employee concerned what is happening and what steps you are taking.
- Warn them that they may be dismissed if medical opinion and consultation concludes that the employee is incapable of performing their contractual duties.
- Discuss possible adjustments to the situation with the employee, medical advisers and other specialists, if appropriate.
- Consider suitable alternative employment and make use of trial periods.
- Listen to the employee’s concerns and opinions and answer any questions that they may raise as fully as possible.