If a sick employee is impeding business, how do you dismiss them? (fairly)

 
Emma Gross
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Employers need to tread carefully when dealing with situations involving employees pulling a few too many “sickies” or, alternatively, individuals that have been off sick for a long time without any clear indication as to their prognosis.

When handling these issues, it’s crucial that employers follow a fair process in order to put their best foot forward when defending subsequent claims, in the event of dismissal.

Throughout this process, employers should ensure that they refer to their sickness absence procedures and/or other relevant policies and stick to contractual provisions.

Consider the circumstances

Short-term absences

In cases of short-term, intermittent absences, it’s worthwhile holding return to work interviews after each absence to investigate the reason for it, and to uncover any underlying health conditions.

You might need to follow capability or disciplinary procedures, which will mean offering guidance, and setting timescales for improvement of attendance levels (with a clear explanation about the consequences of failing to do so). Employers can then review employees’ progress and issue warnings if there has not been adequate improvement.

Long-term absences

It is often considerably trickier dealing with long-term absences, particularly in circumstances where the cause of ill-health is uncertain.

Employers should try as far as possible to maintain contact with such employees – particularly in respect to obtaining medical input – and when considering whether any reasonable adjustments could be made, or alternative roles could be offered, to facilitate the employee’s return to work.

These meetings may be a useful way of establishing the nature, extent, and likely duration of the illness, based on the employee’s own opinion and medical evidence. It is important to consider early on whether the employee would be considered “disabled” under equality legislation, as this could trigger potential disability discrimination claims at a later stage.

Before contemplating dismissal, as an employer you should consider the surrounding circumstances. For example, the employee’s length of service could be relevant, as an unblemished record in respect of previous absences could suggest that the employee would be likely to return to work as soon as their health permits.

On the other hand, an employer might take the view that the impact of the employee’s absence on the business is so substantial that it will be a determining factor in terms of proceeding to dismissal.

Correct procedures

When it seems unlikely that an employee will return from long-term sick leave, or where there is no improvement in attendance following a series of repeated, short-term absences, employers will need to consider the situation carefully before proceeding to dismissal.

A meeting should be held with the employee to discuss the situation and to provide them with an opportunity to present their case against dismissal.

At this meeting, the individual should be informed about the factors being taken into account and possible outcomes. In the event they fail to attend this meeting, it would usually be best practice to adjourn, particularly if the employee’s failure to attend is due to their illness.

However, in certain, exceptional circumstances, it may be reasonable for an employer to hold the meeting without the employee being present.

The primary take-home point for employers is to ensure that they have waited a reasonable amount of time before moving to dismissal, having considered any alternative roles and fully assessed the impact of the employee’s absence on the business.

Enough is enough

If you fail to dismiss an employee on sick leave in a fair and appropriate manner, you could find yourself exposed to a whole raft of claims, including unfair dismissal and disability discrimination.

Therefore, follow a fair procedure, as set out above. Terminating employment in compliance with contractual and statutory entitlements is vital.

Emma Gross is a solicitor in the employment team at SA Law.

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