Despite the fact that having an employee who is on long-term sickness leave can be challenging on business resources, there are certain protocols every employer should follow when deciding whether an employee should be dismissed.
It is best practice for an employer to stay in contact with an employee who is off work on long term sickness throughout their absence.
Additionally, it is vital that you ask for the consent of the employee to obtain recent medical evidence and enquire into their prospects of returning to work, in order to keep track of their progress.
What employers should consider
Before considering dismissing a sick employee, a reasonable employer should consider whether any reasonable adjustments will enable them to return to work. Although the duty to make reasonable adjustments only applies where the employee has a disability, you may choose to consider this aspect even where no disability exists.
It is vital that you ask for the consent of the employee to obtain recent medical evidence.
You should consult the employee and ask if they have any requirements for reasonable adjustments which can be implemented.
In some instances, the employee may not feel that they can return to work even with adjustments and they might resign because of that reason. However, if they do not, they will remain an employee until they are dismissed regardless of whether they are working or absent due to ill health.
When adjustments can’t be made
If no reasonable adjustments can be made, then you should consider whether there are any alternative positions within the business which may be appropriate for the particular employee.
If nothing is available, or in the event of rejecting the alternative employment, you can fairly dismiss an employee who is on sick leave for a potentially fair reason such as medical capability.
You should consider whether there are any alternative positions within the business which may be appropriate for the particular employee.
This applies in a situation where an employee is on long-term sick leave and does not show prospects of returning to work in a reasonable time.
The amount of time in question has to be reasonable in relation to the type of position and the difficulty for the employer to cover the absence.
You are not expected to keep a position open indefinitely, but before proceeding to dismissal, you should ensure that all necessary investigations have been carried out fairly, all the crucial information has been clarified and the employee has been kept informed of the situation along the way.
Medical capability procedures can sometimes be protracted but it is essential all elements are covered.
The importance of following contractual procedures
Contractual procedure should be adhered to in relation to any dismissal. You should invite the employee to a meeting, but if they cannot attend, as it is often the case, you should suggest a home visit or hold the meeting over a phone call.
After the meeting, compare the facts to previous scenarios and outcomes in the organisation, to make a fair, consistent and reasonable decision.
If an employee’s contract of employment is terminated by the employer even if the employee is on sick leave, then they have to give the employee the notice stated in the contract or the statutory minimum notice period, whichever is longer.
The statutory minimum notice period is 1 week if the continuous employment is between 1 month and 2 years; and 1 week for each year of continuous employment if it is more than 2 years (with a maximum limit of 12 weeks).
Liverpool born Alan Price FCIPD, CMgr, FCMI is a successful entrepreneur and senior business figure. Alan is Employment Law Director of Peninsula.
He is also managing director of Peninsula Ireland and Elected Director & Trustee for the Chartered Institute of Personnel and Development - CIPD.
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