Q Can I dismiss an employee for long-term sickness?
A. Having an employee off work on long-term sick leave can be frustrating at times, especially for those employers with fewer resources who may be adversely affected by a prolonged absence.
Many may question whether it is possible to dismiss in these circumstances, which is something that can create a potential minefield for employers.
When faced with this situation, employers need to consider the serious risk of discrimination, as it is likely that individuals on long-term sick leave will qualify as disabled under the Equality Act 2010.
The act states that individuals are to be considered disabled when they have an impairment that has a substantial, long-term, adverse effect on their ability to carry out normal day-to-day activities.
It is unlawful to treat disabled individuals any less favourably as a result of their condition, which will include outright dismissal, without first demonstrating that attempts have been made to resolve the situation.
Therefore, you should keep in regular contact with an employee that is on long-term sick leave to understand their symptoms and request fit notes from their doctor which may prove to be valuable evidence.
It is essential that you make all the available and reasonable adjustments that could allow them to return to work.
These may include a change to their work duties or work hours to reduce any added strain, or allowing a period of working from home if an aspect of the work environment is exacerbating their condition.
A phased return is advisable to ease the employee back into their work routine and reduce the potential for any adverse effects.
It will also be beneficial to conduct an occupational health assessment, which involves arranging for a qualified medical practitioner to review the employees’ condition, before making an expert judgement on whether anything further can be done to facilitate their return to work.
Once they produce an occupational health report, you will be expected to follow it and implement these changes.
Only once you have explored every possible solution should you consider dismissing the employee on medical grounds.
However, this is not a decision to be taken lightly as it could result in extremely costly tribunal claims for unfair dismissal and disability discrimination.
Tribunals will take into account how reasonable any decision was and you will need to be able to document clear reasons for the dismissal.
Although dismissing an employee for long-term sickness may not be easy, and leave some employers feeling uncomfortable, it is a possibility.
However, before even contemplating this, significant efforts must go into making reasonable adjustments that could enable the employee to return to work.
Peter Done is managing director of law firm Peninsula