This guide sets out the steps a charity should take when considering dismissing an employee for a sickness absence-related reason.
Although this can be a fair reason to dismiss an employee, it is important to follow the correct procedure.
Review and retain the correct documentation
• If the charity has a sickness or absence policy, make sure it is complied with.
• Review the relevant provisions in the employee’s contract of employment pertaining to sickness absence and pay.
• Keep confidential records of medical certificates, correspondence, telephone calls and meetings.
Conduct an investigation
• Investigate the nature, extent and likely duration of the medical condition causing the absence. Ensure the charity has the up-to-date medical evidence that gives a clear prognosis. Please not it is important to obtain consent from the employee outside of any contract of employment
• If the absence is stress-related, refer the employee to the charities stress policy (if one exists) or any counselling services that are on offer. Consider whether dismissal could be avoided by changing the employee’s role or duties.
• If the absences are short-term and intermittent, the charities should investigate whether there is an underlying cause (medical or otherwise). If necessary the charity should follow a capability or disciplinary procedure, setting timescales for improvement and giving warnings where appropriate.
• Maintain contact with the employee throughout the investigation, especially when the charity:
o receives medical evidence;
o is considering what adjustments to make or whether an alternative position would be suitable;
o is contemplating dismissing the employee.
Disability and reasonable adjustments
• The employee is disabled under the Equality Act 2010 (relying on medical evidence as required).
• 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 charitiy that might be more suitable for the employee.
Review the alternatives to dismissal
Before taking the decision to dismiss, the charity should consider:
• The importance of the employee and the position they occupy in the charity.
• The impact their continuing absence is having on the charity.
• The difficulty and cost of continuing to deal with their absence.
• Whether the charity can avoid dismissing the employee (for example, by offering them an alternative position).
• Their age, length of service and the circumstances surrounding the employee’s absence.
• Any action that has 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.
• Reviewing the medical evidence to make sure it is up-to-date.
Make sure the correct procedure is followed
- If the charity has instigated a capability or disciplinary procedure and this has led to the decision charity concluding dismissal may be appropriate, write to the employee inviting them to a meeting, making it clear that the charity is contemplating dismissing them.
- Provide enough information about the circumstances the charity is taking into account and the possible outcomes to the meeting, 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.
- Once concluded, confirm the decision in writing to the employee. The letter should:
o provide the reason for dismissal.
o confirm their last day of employment.
o give them the right to appeal the dismissal decision.
o Ensure the employee’s contractual and statutory entitlements are met and that they receive the correct pay entitlement, including notice and holiday pay.
o If an appeal is subsequently submitted by the employee, hold an appeal meeting. In the same way that any outcome is communicated after the disciplinary meeting, confirm the appeal outcome to the employee in writing.
This employment law briefing just provides an overview of the law in this area.