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Sickness Absence

Dealing with long term sickness absence

One of the most difficult issues for employers is dealing with long term sickness absence. Of course this is difficult for the employee also but in many respects, the employer is almost “walking a tightrope” in trying to balance it’s legitimate need to run a business, to know what is going on, as against the employee perhaps feeling that the employer is snooping on them, doesn’t believe they are sick, or looking for a way to justify dismissal. This is, in our experience, a particularly common issue with larger employers who have an HR team and who, for example, may use Occupational Health Services.

The general legal position

An employer is entitled to ultimately dismiss, fairly, an employee who is absent due to long term sickness, but the employer needs to be able to demonstrate they have acted sensitively, fairly, to have consulted with the employee and considered all available alternatives to dismissal. Procedure is also important.

The ultimate decision to dismiss needs to be founded on a conclusion, based on factors which almost certainly must include medical evidence, that the employee is unlikely to be able to return to work within a reasonable time.

Such  a conclusion will involve different factors for different types and sizes of employers and relevant considerations may include :-

  • the type of  job
  • the employer’s size and resources
  • the length of absence thus far
  • how have other situations been dealt with historically
  • does the employee have a disability and if so, have reasonable adjustments been considered
  • are there any alternatives to dismissal
  • Grounds for dismissal – capability, some other substantial reason or frustration of contract

    Putting a label on the unfortunate circumstance of having to dismiss due to long term sickness absence is somewhat unpleasant but may be necessary should the employee claim unfair dismissal.

    2 of the potentially fair reasons for dismissal to defend an unfair dismissal claim are :-

  • capability
  • some other substantial reason
  • Both of these defences are available in this situation. The capability defence does not equate to the standard use of that term, which generally refers to where an employee is not performing to the standard required. However, it applies in the context that if an employee is not physically at work, he or she is technically incapable of doing the job.

    As regards frustration, this is a legal contract which doesn’t come within the general unfair dismissal defences. It may be argued  however. In effect, the concept is that the contract was impossible for the parties to perform due to circumstances beyond their control such that the contract should be terminated without sanction.

    Procedure before any dismissal

    As with any potential issue of unfair dismissal, procedure is very important. Failing to comply with fair or adequate procedure can result in a finding of unfair dismissal even if the underlying reason for dismissal was fair.

    An employer needs to ensure that it stays in contact with the employee during the period of absence. Too much or intrusive contact can create issues, and this is a difficult balance. The employee should be offered all available assistance and as the absence continues, should be asked to co-operate in allowing the employer to have information from the employee’s doctor. This needs to be dealt with very carefully and sensitively also (legal advice is strongly recommended)

    Once the employer reaches the conclusion that dismissal may be necessary, the following are the minimum required in procedural terms :-

  • arrange a meeting with the employee on appropriate written notice and explaining the position and that dismissal is a possibility
  • again review medical evidence available
  • the employee must be notified of his or her right to be accompanied at the meeting by  a Union rep or work colleague
  • the employee should be given the opportunity to put his or her views forward at the meeting
  • Any decision to dismiss should be carefully considered after the meeting, communicated to the employee and if the decision is to dismiss, the employee should be informed of his or he right to appeal.

    Entitlements on termination

    An employee  dismissed due to long term ill health is usually entitled to statutory notice pay at full rate of pay which will equate to 1 week’s pay for up to 2 years of employment and subsequently, 1 week for every year of their employment up to a maximum of 12 weeks.

    Compromise Agreement ?

    A compromise agreement is a possible solution to an ill health dismissal and can be considered sometimes at a significantly earlier stage than waiting for enough time to pass to consider dismissal otherwise. Offering such an agreement carries some possible risks, so should be considered in conjunction with legal advice and handled very carefully.

    Get in touch with me for a free discussion or potentially meeting if you have an issue with a member of staff who has been off work for an extended period. This is one area where there are significant legal risks and where it’s important to get the right advice.