Dismissing an employee due to an ongoing medical absence can be a tricky subject for both the employer and the employee. The employer has to consider the need of the business to have the post filled whereas the employee has to consider the importance of holding on to their role for financial reasons. An employment tribunal will have to weigh up the needs of the employer as compared to those of the employee. The matter is even more complicated where the employee’s absence is due to a disability. In this article we look at the important considerations for employers when it comes to long term medical absences. The Risks If an employer were to dismiss an employee on the basis of medical incapability then the main risks are as follows:
- An unfair dismissal claim which can carry up to two years’ compensation.
- An equality claim on the grounds of disability which can carry up to four years’ compensation.
Accordingly, it is vitally important that employers seek advice on how best to manage long term medical absences so as to ensure that they are complying with their legal obligations. Is it true that you cannot dismiss an employee on certified sick leave? No, this is not true. Under the Unfair Dismissals Acts 1977 to 2007, an employer may dismiss an employee on the grounds of incapability if the employee is incapable of performing the work which they were hired to do. Additionally, the Employment Equality Acts 1998 to 2011 do not prohibit employers from terminating employment on grounds of incapability as long as the employer has sought to “reasonably accommodate” the employee’s disability in the workplace. What are the main considerations where it appears the employee is unlikely to be able to return to work?
- Firstly, the employer should ensure that they are in full possession of all the material facts concerning the employee’s condition. This is most readily achieved through obtaining medical advices from either the employee’s doctor or from a company doctor. Such advices should also be able to assist the employer in identifying whether or not the employee’s absence is due to a disability. It is often the case that a disability can be reasonably accommodated in the workplace and as such a dismissal would not be necessary.
- Secondly, based on the medical advices, if it appears as though the employee is unlikely be able to return to work again, or the foreseeable future, the employer should ensure that employee is given fair notice that the question of his or her dismissal for incapacity is being considered. If the medical advice confirms that the employee may be able to return to work but not for the foreseeable future then the employer will need to have a very solid business reason as to why they need to dismiss the employee rather than, for example, covering their absence through temporary employees.
- The employee must also be allowed an opportunity to influence the employer’s decision. This will normally require a two-stage enquiry, which looks firstly at the employee’s capability / incapability and its likely duration, and secondly looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.
- If it is apparent that the employee is not fully capable, the employer must consider what reasonable accommodation they can offer the employee to make them fully capable, such as special treatment or facilities that may be available and the cost associated with such treatment/facilities. For example, if an employee is absent due to a hearing difficulty then can the employer assist with visual aids, visual software, etc. Where the employee is consulting a specialist on their condition then it is advisable to seek the specialist’s advices rather than that of a general practitioner. If the medical advice confirms that the employee may be able to return to work but not for the foreseeable future then the employer will need to have a very solid business reason as to why they need to dismiss the employee rather than, for example, covering their absence through temporary employees.
Conclusions If an employee is on long term sick leave, ensure you are fully informed on the nature of the illness and its likely duration. It is equally important that employers keep an open dialogue with the employee and to fully engage with them on how best to facilitate their return to work. If it gets to the stage where dismissal is a possibility then again the employee should be fully consulted. By following the correct procedures the employer can’t go wrong as you will either have your employee back to work and performing their duties or alternatively you will be able to end the employment relationship in a fair and transparent fashion. Employers should ensure to seek advice from the Peninsula 24 Hour Advice Service on 01 855 50 50 if they have any employees on long term sickness absence.
