When you have an employee off on long term sick leave, you may end up at some point having to decide whether you can continue to hold their job open. You’ll need to balance giving the individual enough time to recover from their illness or injury with the need to ensure their work is covered, and the potentially negative effect on your customers and the rest of your team.
The best-case scenario is where an employee makes a full recovery and slots back into their role, perhaps with some additional initial support. However, this is not always possible.
There may come a point when it’s no longer viable for your business to keep the employee’s job open, or when it seems very unlikely their health will improve enough for them to be able to return. If this time comes, you may want to consider making a dismissal on the grounds of capability (ill health).
Dismissing an employee on long term sickness absence should always be done sensitively and by following a fair process. In this guide we’ll help to take you through the process to find the best possible solution for your employee and your business.
Can I dismiss an employee on long term sick?
Yes, you can dismiss an employee on long term sick, but only after following a reasonable process.
If your employee has more than two years’ service and/or their absence is due to a disability you are at risk of an unfair dismissal and/or discrimination claim. Before considering dismissal, you should be holding a series of meetings and obtaining medical information to guide your decision making.
If your employee has a condition that counts as a disability under the Equality Act 2010, you are required to explore reasonable adjustments to enable them to return to work.
How to dismiss an employee on long term sick leave
Managing long term sickness and incapacity for work
As soon as your employee tells you they are off sick, you should make contact so that you understand the nature of their illness and the likely length of their absence. If they are off for more than seven days, they need to provide a Fit Note. Agree how regularly they should ring in to maintain contact with you.
If the employee is off sick for more than a month, it is normal to invite them to an absence review meeting, particularly if there’s no likely imminent return to work. Give them a written invitation and explain that they can bring a colleague to the meeting. You might want to let them bring a family member as a companion.
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During the meeting, discuss the absence, how long it might last and any advice they have been given by their medical advisor. Discuss whether there’s anything you can put in place to enable them to return to work. Examples of changes which might help include a temporary change to duties or a phased return to work building up from shorter hours to their full contractual commitment.
It is typical to have several of these meetings during a person’s long-term sickness absence.
Later into the absence, it may be helpful to ask the employee’s written permission to get additional medical information from their medical advisor. Alternatively, you may ask them to talk to an Occupational Health adviser, who can give specific recommendations on potential reasonable adjustments.
If your employee has a disability, it’s particularly important to demonstrate that you’ve explored reasonable adjustments which may be temporary or permanent. These can include adjustments to the role, physical adjustments to the premises or the provision of aids.
Throughout this whole process, be sure to take detailed notes on the suggestions made and agreed or not agreed upon and share these with your employee.
Dismissal on capability (ill health) grounds
If you’ve held formal absence review meetings, exhausted all options to make reasonable adjustments that might help the employee return to work and received advice from a medical professional that the employee is unlikely to be able to return in the medium term, then you may be strongly considering a capability dismissal on grounds of ill health.
Unfortunately, there are no black and white rules as to what length of time is acceptable before taking this route. It will depend on the factors in each situation, including the nature of the employee’s health condition, their role and the effect their absence is having on the company.
Once you’ve decided to move forward with the potential dismissal, you will need to follow a full and fair procedure as laid out in your employee handbook. You’ll need to invite the employee to a meeting and clearly signpost that the outcome could be that they are dismissed for capability (ill health).
Ideally you will have medical information to support your assessment about the likelihood of them returning. Ensure you have explored any alternatives such as making reasonable adjustments, considering other roles and utilising any options available through their pension scheme or insurance schemes.
After having a discussion and exploring the medical information available, adjourn to make a decision and then communicate this to your employee both verbally and in writing. Remember that they’ll be entitled to their contractual notice, accrued holiday pay and the right to appeal your decision.
What about terminal illnesses?
Making a dismissal decision about an individual with a terminal illness is particularly difficult emotionally. Remember that people with a terminal illness may live for days, weeks, months or years, depending on their diagnosis and treatments. Rather than making assumptions, ensure you understand what this really means for your colleague.
You’ll have additional factors to consider when deciding whether or not to terminate an employee with a terminal illness. Try to avoid making assumptions about what is in their best interests. Some individuals may wish to remain with your organisation in order that their dependents can benefit from any death in service scheme you may offer.
Others may actually be struggling financially and benefit from any pay in lieu of notice and untaken accrued holiday pay you make as a result of dismissal. These are difficult discussions but it’s important to understand your employee’s wishes before making decisions that will affect them and their dependants.
To sum up
Although employees on long term sick can present difficulties for small businesses, it’s essential that you follow the right process before considering dismissal. The steps to remember are:
1. Ensure you continue to receive Fit Notes.
2. Keep in regular touch with the employee and hold an absence review meeting roughly every six weeks.
3. Prior to considering a dismissal, request information from their GP or Occupational Health (with the employee’s permission).
4. Consider if any reasonable adjustments can be made or whether there are any alternatives to dismissal.
5. Document the impact their absence is having on the organisation.
If you have followed these steps and the employee’s return to work still doesn’t seem likely, then you should consult a HR professional to see if dismissal is an option.
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