Dealing with long term sickness absence can be one of the most difficult issues for employers both in terms of covering the workload and also having concern for the employee’s well-being. At some point an employer has to consider whether there will be a return to work or not. From a business perspective, an employer is entitled to ultimately dismiss, fairly, an employee who is absent due to long term sickness.
The employer needs to be able to demonstrate they have acted sensitively, fairly, to have consulted with the employee and considered all available alternatives to dismissal. This could include making any reasonable adjustments that could help them return to work. It would be dangerous to dismiss the employee if their return to work could be achieved in the short-term with reasonable adjustments which are not too onerous on the business.
The ultimate decision to dismiss needs to be founded on a conclusion, based on factors which almost certainly must include medical evidence and that the employee is unlikely to be able to return to work within a reasonable time. Such a conclusion will involve different factors for different types and sizes of employers and relevant considerations may include:
- the type of job;
- the employer’s size and resources;
- the length of absence thus far;
- how have other situations been dealt with historically;
- does the employee have a disability and if so, have reasonable adjustments been considered;
- are there any alternatives to dismissal.
The most used potentially fair reason for dismissal to defend an unfair dismissal claim is the fact that the employee is not physically at work and as such he / she is technically ‘incapable’ of doing the job. As with any potential issue of unfair dismissal, procedure is very important. Failing to comply with fair or adequate procedure can result in a finding of unfair dismissal even if the underlying reason for dismissal was fair.
This can be a tricky situation with many pitfalls so make sure you proceed with caution at every stage in order to avoid an expensive claim further down the line. Having clear policies in place can assist, along with expert HR advice and guidance.
If you would like to know more or discuss how we can help you, please contact our HR consultants at email@example.com