If an employee is ill, lots of issues can arise, especially if it leads to long-term absence from work. If you’re unsure of how to deal with a situation like this, it’s best to seek legal advice. You’ll want to treat anyone who has a long-standing illness fairly, but also do what’s right for your business.
We can help you in a number of ways, whether it’s giving you advice on drafting sickness absence policies and procedures or defending you against an unfair dismissal or discrimination claim.
This fact sheet sets out the steps to consider if dismissing an employee for a sickness absence-related reason. If your business has a sickness or absence policy then this should also be complied with.
Conduct an investigation
- Investigate the nature, extent and likely duration of the medical condition causing the absence. Ensure the business has up-to-date medical evidence that gives a clear prognosis (obtained with the employee’s written consent). Consider whether to obtain the report from employee’s own GP or an independent health adviser
- If the absence is stress-related, refer the employee to the business’s stress policy (if one exists) or any counselling services available. Consider whether dismissal could be avoided by changing the employee’s role or duties
- If the absences are short-term and intermittent, your business should investigate if there’s an underlying cause. If necessary follow a capability or disciplinary procedure and set timescales for improvement and give warnings where appropriate
- Keep confidential records of medical certificates, correspondence, telephone calls and meetings
Contact at all times
It’s essential to maintain contact with the employee throughout the investigation, especially when you receive medical evidence, are contemplating dismissal or considering what adjustments to make. Review the employee’s contract and keep lines of communication as open as possible.
Disability and reasonable adjustments
It’s important, for the purposes of discrimination legislation under the Equality Act 2010, to consider whether an employee is disabled. If this is the case you may want to make adjustments to duties or workplace to help them return to work. But you also have to consider if these adjustments are reasonable. Another alternative is to find a different job within the business that might suit them better.
Review the alternatives to dismissal
It’s always good to consider alternatives in these situations, so think about how important that employee is to you. Does their absence impact on the business or is it creating difficulties and extra costs? It may be possible that you can offer them a different role to solve the issue. You should also consider:
- Their age, length of service and the circumstances surrounding the absence
- Any action that’s previously been taken in relation to other employees in similar circumstances
- Claiming under the terms of any permanent health insurance (PHI) policy or ill-health retirement if the employee has been absent long-term and is unlikely to return in the foreseeable future
- Whether dismissal would have an adverse affect on any PHI entitlement the employee currently receives
- Review the medical evidence to make sure it is up to date
Follow correct procedure
If you decide that dismissal may be necessary, write to the employee inviting them to a meeting, making it clear that the business is contemplating dismissing them. You should give the employee at least two days’ notice of the meeting, and the opportunity to be accompanied by a trade union representative or fellow employee. You should also:
- Provide enough information about the circumstances the business is taking into account and the possible outcomes to enable the employee to respond meaningfully
- Hold a meeting with the employee and give them the opportunity to present their case against the dismissal
- Confirm the decision in writing. The letter should give the reason for dismissal, confirm their last day of employment and give them the right to appeal
- Ensure the employee’s contractual and statutory entitlements are met and that they receive the correct pay entitlement, including notice and holiday pay
- Hold an appeal meeting (if requested by the employee) and confirm the decision to the employee in writing
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The EAT (Employment Appeal Tribunal) emphasised that it’s fact specific when it comes to assessing an employee’s alleged unfavourable treatment and the causes in relation to their treatment.