One of the potentially fair reasons for dismissal under the Employment Rights Act 1996 (ERA) is “capability and qualification”.
If an employee is off work and ill they are incapable of doing the job.
At what stage in long-term sickness will a dismissal be fair.
Firstly, you must follow a fair procedure. (The Acas Code of Practice on Disciplinary and Grievance Procedures does not apply). You must also establish the true medical condition and consult appropriately with the employee before deciding whether or not to dismiss.
Consider the following carefully: –
- The nature and type of the illness;
- The prospect of the employee returning to work and the likelihood of the recurrence of that illness;
- How much do you need someone to do that work and what is the effect on the rest of the workforce – in other words how disruptive is it to the business;
- Does the employee on sick leave fully understand their position – do they know and understand how it is dealt with in their contract and in your policies and that in due course it will bring their job to an end;
- The employee’s length of service.
Then you must get to grips with the underlying health condition and prognosis and consider whether the employee is suffering from a disability.
If there is a disability you are under a duty to make reasonable adjustments and not discriminate because of that disability.
In every case, as well as going through the list above, before dismissing you should also: –
- Know the up-to-date medical position;
- Consult fully and carefully with the employee (make sure you follow your policy);
- Consider the availability of alternative employment.
Having carefully considered all of the above the employer should consider whether a reasonable person would expect them to keep the employee’s job open any longer.
In deciding whether it is reasonable to dismiss a Tribunal will look retrospectively at: –
- The availability of temporary cover and its cost;
- The sick pay situation and the cost to your business;
- The administrative costs of keeping the employee in your business;
- The above in relation to the size of your business.
In summary, the Tribunal and Appeal Courts have decided employers are entitled to some finality in cases of long-term sickness.
The employer will have to show it has obtained up-to-date medical evidence.
An occupational health report from, say, three months before the dismissal date is not going to be good enough.
The employer must be able to show the Tribunal evidence of the impact and cost on the business unless it is completely obvious the impact is severe.