Following a fair procedure when managing sickness absence
When you are managing long-term sickness absence at what point do you have to make the decision that the employee is potentially unfit to return? You have to remember that if someone has been off sick for a long time they are deemed to be incapable to do the job. Capability (that includes ill health) is one of the fair reasons for dismissal but you must follow a fair procedure and show that you acted reasonably in treating the absence as a sufficient reason to dismiss. Also, the Acas Code of Practice does not apply in such cases, although particular care needs to be taken with employees who are disabled, or who could be potentially disabled.
Therefore, at what stage do you consider that ending the employment is the right thing to do? You need though to remember that each case of long-term sickness absence is different and each approach to managing it is different.
This is a very delicate area to manage and you can’t get it wrong as it could be very detrimental and costly to you if you do.
Undertake an occupational health assessment
Firstly, you need to have gone through at least one or more welfare meetings and obtained their consent to obtain a professional medical report or to undertake an occupational health assessment and before any dismissal, these must be up-to-date and establish the true medical condition. (You should check the contract of employment to see that the right for these is in it). Also, besides the welfare meeting(s), throughout the length of absence, have you been in touch with the employee, or been to their home to see how they are and obtained how they feel about their absence and their views on it? It’s best practice to do this, especially in long-term absences because the longer the employee is off work it makes it harder for them to return and could lead to a further decline in their physical and/or mental health.
The information you need to have to consider is:
- The nature and type of the illness
- How long have they been absent (in smaller companies this could be a relatively short period as their absence is likely to have more of an impact)
- If there is any prospect of the employee returning to work in the near future (if ever) and the likelihood of this illness recurring and how that will affect their employment if and when they return
- Does the report specify if the employee is suffering from a disability because if so, you may need to consider making reasonable adjustments* and not discriminate against them because of the disability
- How long you can keep the position open for as there comes a time when it is not reasonable to do this
- Consider what disruption and other costs there have been to the business due to their absence
- Consider how you have handled similar situations in the past
- Check to see if there is an insurance scheme in place that covers long-term sickness absence as dismissal may not be appropriate depending on the wording of the policy.
*Reasonable adjustments could be to hours of work, the work that they actually do, or if there is something else they could do besides any environmental adjustments. However, you do not have to create a vacancy to accommodate them.
If the employee is claiming stress or anxiety, which could lead to depression, then you need to ascertain if it is going to develop into a disability as stress itself is not a medical condition.
If the employee refuses to give consent, then you need to make decisions based on what information and evidence you have at the time the decision is made so that the dismissal can be justified and that it is unreasonable to expect you to wait any longer, although this could be more risky.
Capability meeting to discuss the situation
Secondly, if it is possible, invite them to a capability meeting to discuss the report and the situation ensuring you follow your appropriate policies for this. This letter could then contain that the outcome of this meeting could be the termination of their employment.
If you establish that the employee is not capable of returning you can then dismiss on the grounds of ill-health. However, the employee could propose a phased return to work that should be seriously considered unless you have professional evidence to say that they are not likely to return in the near future and they have been off a long time and that you feel that it is not appropriate as you cannot keep their job open any longer.
The dismissal needs to be in writing and you may wish to give the employee the opportunity to appeal, although there is no legal requirement to do so.
If they have over 2 years’ service they can bring a claim to an employment tribunal if they feel that their dismissal is unfair.
Therefore, if the case went to an employment tribunal you would need to justify:
- That the business could not hold the job open any longer
- The temporary cover (if any), disruption to the business and the costs to your business
- The administrative costs of keeping the employee in the business
- The size of your business
- Overall, they will consider the reasonableness and fairness of your decision.
Further HR guidance
This article does not fully go over the full processes involved before you come to the decision to dismiss and the actions you take at the final meeting. Therefore, before embarking upon any such action, it is always best to take advice. HR Solutions can fully support and advice you on such matters.
HR webinar recordings
Awareness of the scale of mental health issues is growing rapidly, and with that follows the need to increase our understanding of how people experiencing mental ill health can be supported in the workplace.
Watch webinars on demand:
- Managing Long-Term Sickness Absence
- 5 Ways Managers Can Support Mental Health at Work
- Minimising Risk – Absence Management
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