Dismissing an employee for a sickness related absence is a potentially fair reason for dismissal.
However, failure to follow a fair procedure can result in claims for unfair dismissal (and, potentially, disability discrimination) being made which can prove costly to businesses.
Below are five key stages when considering the dismissal of an employee for a sickness related absence.
1. Reviewing and retaining the correct documentation
Documentation is generally the cornerstone when defending any claim. Do therefore ensure:
- Sickness absence policies and procedures are kept up to date with current legislation and followed.
- The employee’s contractual entitlements are complied with.
- Copies of medical evidence, correspondence, telephone calls and minutes of any sickness review/welfare meetings must be kept; do remember to keep them in accordance with data protection legislation.
2. Conducting Investigations
This is a stage which is often overlooked. Investigations do not always need to be formally conducted and the usefulness of return to work meetings for investigative (as well as other) purposes should not be overlooked.
- Investigate the nature, extent and likely duration of the absence with the employee to establish the cause of the sickness absence and to ascertain when, and if a return to work can be expected.
- If the absence is stress-related refer the employee to any stress policy or counselling services on offer.
- Identify whether it is appropriate to obtain a medical report.
- If the absences are short-term and intermittent, investigate whether there is any underlying cause (medical or otherwise).
3. Disability and Reasonable Adjustments
Additional obligations (and potential for claims) arise if the Equality Act applies. Therefore consider whether:
- The employee is disabled under the Equality Act 2010 – this is very likely to require up to date medical information.
- Any adjustments to the employee’s duties or workplace would assist their return to work (or their taking less time off work if their absences are intermittent) and, if so, whether making those adjustments would be reasonable in the circumstances.
- There is another job within the organisation that might be more suitable for the employee.
4. Review alternatives to Dismissal
Before taking a decision to dismiss an employee for a sickness related absence, the business needs to look at alternatives to dismissal such as:
- Making reasonable adjustments to their role to ensure the employee can return to work – this is recommended even if the employee is not disabled for the purposes of the Equality Act 2010.
- If it is unlikely that the employee will return to work, consider whether a claim can be made under any permanent health insurance policy or ill health retirement.
5. When Contemplating dismissal
Once dismissal is contemplated, businesses need to follow their sickness absence procedures. This will usually entail:
- Meeting with the employee to discuss with them their sickness absence and any medical evidence that has been obtained. The right to be accompanied should be observed.
- Reviewing all of the documents including medical evidence.
- Confirming decisions in writing, giving reasons and the right of appeal if the decision is to dismiss.
- Paying any outstanding payments such as wages, holiday pay etc.
- Holding an appeal meeting if the employee appeals against the dismissal.
- Appeals should be chaired by someone who is senior to the decision maker and has not been involved in the process.
- Confirming the outcome of the appeal in writing.
This employment law guide provides an overview of the law in this area.