SICKNESS ABSENCE - 08.04.2024

Managing dismissals for long-term sickness absence

Statutory protections

Lack of “capability” (including due to ill health) is a potentially fair reason for dismissal, but you must follow a fair dismissal procedure and act reasonably in treating that as a sufficient reason for dismissal. Even if the employee doesn’t have the two years’ service required for an unfair dismissal claim, where their illness satisfies the definition of “disability” under the Equality Act 2010 , they could bring a disability discrimination claim in relation to their dismissal. So, you must tread very carefully here.

Medical evidence

The starting point is to obtain medical evidence. This could be a medical report sought from the employee’s own GP or consultant, or you could ask them to see an occupational health physician that you’ve appointed. In either case, you’ll need the employee’s prior consent. If they refuse to consent, warn them this may mean you’ll be forced to make decisions about their incapacity and future employment without the benefit of expert medical advice, and this could be detrimental for them.

Tip. If the employee still refuses to consent, you can act based on the evidence you do have, e.g. fit notes and what the employee has told you.

Consultation

Once you’ve obtained the medical report, arrange to meet with the employee to discuss its content (see The next step ). You should also discuss if, and when, they’re likely to return to work and any adjustments you could reasonably make to facilitate their return, e.g. on a phased basis. Keep an attendance note of all meetings.

Tip. Aim to agree an action plan and timescale for return to work. However, if the outcome is that the employee won’t be fit to return in any capacity in the foreseeable future and that’s supported by the medical evidence, you can contemplate dismissal.

Tip. Check the employee isn’t being paid under a permanent health insurance policy as that will make it much more difficult to dismiss.

Dismissal

The next stage is to arrange a further meeting to consult about your dismissal proposal (see The next step ). Gather evidence of the adverse impact that the employee’s ongoing absence is having on your business, e.g. impact on clients and other staff. You may also need to obtain an updated medical report if there’s been a significant time lapse since the date of the last one. After the meeting, if you decide to proceed to dismissal based on all the evidence, advise the employee in writing and give a right of appeal (see The next step ).

Tip. Dismissal should be the last resort after you’ve considered all other options to get the employee back to work, even if that’s in an alternative role.

Tip. There’s no set time after which a dismissal is fair and/or non-discriminatory as it will always turn on the facts of the individual case. However, don’t contemplate dismissal too early.

For a meeting request following long-term incapacity, a notification of long-term incapacity meeting and a letter of dismissal on long-term incapacity grounds, visit https://www.tips-and-advice.co.uk , Download Zone, year 26, issue 8.