If an employee is taking frequent short sickness absences or lengthier periods of sickness absence, what can you do as their employer? Is dismissal possible and how could you do this lawfully? Our specialist employment lawyers can give you specific advice to your business’ individual circumstances, but below is general guidance to help you with this topic.
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Do you have a sickness absence policy?
It can be helpful to have a written sickness absence policy to ensure that you deal with absences consistently and fairly, reducing your business’s risk of employment claims. By giving your staff access to this policy you can make clear the standards of attendance expected; what the processes are for reporting and evidencing sickness absence; and how sickness absences will be managed by your business. Having a more detailed policy separate from the terms in a contract of employment helps set realistic expectations for the parties relating to, amongst other things, the frequency and method of communication that will be used during an employee’s sickness absence.
If sickness absence is frequent or for a lengthy period, you can set trigger points within your sickness absence policy for meetings or other required action such as a review by an occupational health practitioner.
A sickness absence policy can also help with clarifying the details on entitlement to sick pay, whether this is under a company sick pay scheme or statutory sick pay (SSP) and the conditions which will need to be fulfilled to qualify.
Have you made reasonable efforts to help the employee return to work?
Whilst it is critical that you allow an employee time and space to recover when they are on sickness absence, it is also important to stay in touch and assist with the employee’s return to work and where appropriate, make reasonable adjustments to allow this to happen as quickly and easily as possible. This might include following an occupational health doctor or GP’s advice if they have added details where an employee ‘may be fit’ for work on a fit note or if they have otherwise passed comment on the employee’s condition, after medical assessment.
A medical professional may have suggested a phased return to work, hybrid working, altered working hours or pattern of work, adaptation to the role or equipment, in addition to temporary assistance to handover gradually or considering alternative roles, amongst other things. If an employee ‘may be fit’ for work according to their fit note, but you do not agree on the suggested changes you should treat the employee as not fit to work until such time that recommended changes can be made or the employee recovers sufficiently to allow other agreed changes to be implemented or to return without changes being required.
An open and honest dialogue with your employee and clear written records of all meetings and conversations between the business and employee and requests for access to medical records, which can be referred back to if required, is the key to understanding any issues preventing an employee returning to work. What might reduce or eliminate issues for return is pivotal for maintaining the employment relationship and effectively getting an employee back to work again after a period of sickness absence. An employee should be advised of the process to return, which may include a back to work interview and must be consistently applied.
Clear communication is important to ensure that nothing is missed. Whether you have made sufficiently reasonable effort will be dependent on whether an employee is deemed disabled and if so may require reasonable adjustments to be made to return to their job.
Employers should also be aware that if an employee is pregnant, dismissing an employee or subjecting her to any detriment as a result of a pregnancy related illness occurring during her protected period is unlawful and so this would need to be considered before any action is taken if the illness is pregnancy-related. Likewise, if an employee falls ill within 4 weeks of her expected week of childbirth, she will automatically be placed on maternity leave and paid maternity pay not sick pay.
Have you given the employee enough time to recover?
You should ask your employee questions about the length of time it will take them to recover, if there are any lasting effects of an illness or injury which may require adjustments to the workplace and what those would ideally be from the employee’s perspective.
You will want to avoid aggravating an employee’s illness or injury if they are not sufficiently recovered and will need to ensure that you are not breaching your Employer’s Liability Compulsory Insurance by allowing an employee who is not fit to work into the workplace to perform their duties. It is advisable to carry out a full risk assessment in advance and contacting your insurer if you are in doubt before an employee returns to work. It is worth seeking legal advice from a specialist if you are unsure about whether an employee should be allowed to return to work and whether they should be paid in full while absent from work in circumstances where there is doubt about whether the employee should return to work.
If an employee’s illness or injury has, or is likely to, last for 12 months or longer the employee may be considered as a disabled person and protected by the Equality Act 2010. In such circumstances, employers can seek advice from a medical professional to help assess whether the employee would be a disabled person. If your employee is disabled you have an obligation as their employer to try and accommodate reasonable adjustments as far as reasonably practicable, where the disabled employee suffers a disadvantage and it is reasonable to do so to reduce the disadvantage. If reasonable adjustments have been attempted even on a trial basis, any subsequent dismissal is more likely to be reasonable. If you decide to dismiss a disabled employee, care will need to be taken as they are likely to have grounds to bring claims including for unfair dismissal and/or disability discrimination. For more information read our unfair dismissal guide.
On what grounds can you dismiss an employee that is sick?
Dismissing on the grounds of capability is a potential fair reason for dismissal, so employers are able to dismiss an employee on this basis where they are on long term sick leave or have a history of short-term absences. However, for the dismissal to be fair and non-discriminatory, an employer must follow a fair process. What that process looks like will differ depending on the length of absence, frequency of absences and whether the employee is a disabled person. We recommend always seeking legal advice when looking to dismiss an employee with health concerns.
If the employee has less than two years’ service, the risks to the business are reduced because they do not have the qualifying service to claim unfair dismissal. However, if they are disabled, then they could still claim disability discrimination.
Some scenarios to consider are:
- An employee is fabricating an illness or taking unauthorised absences
If an employee is suspected of malingering or taking unauthorised absences, this may constitute a potential serious misconduct matter for which disciplinary action, including dismissal, may be justified under your disciplinary policy. In these circumstances you should make the employee aware of any evidence and allegations against them and give them the opportunity to defend themselves during a fair disciplinary process before taking action. - Re-occurring short term absences
Investigations would need to be undertaken in relation to the basis for such absences. However, it may be that by implementing a comprehensive and well-drafted sickness absence policy you could dismiss on the grounds of capability or perhaps misconduct under your disciplinary policy, depending on the frequency and basis of the absences. - Long-term sickness absence with no prospect of recovery
This would usually involve following a capability process and obtaining medical evidence as to the employee’s prognosis. As mentioned above, if there is a possibility of the employee being deemed disabled you will need to ensure that reasonable adjustments have been carefully considered before acting to dismiss an employee. - On the basis of one of the other potentially fair reasons for dismissal
There may be other options to consider in addition as an alternative to dismissal including the possibility of ill health retirement. However, this can be a tricky area to navigate as permanent health insurance being offered before a dismissal could lead to a breach of contract if an employee loses this benefit by being dismissed. Advice should be taken at an early stage to ascertain possible options in this regard before any steps are taken to effect a dismissal, to minimise the risk of any potential claims arising.
Summary
The best starting point when dealing with sickness absences and potential dismissal is to look at your employee’s contract and your sickness policy, if you have one. A written, comprehensive sickness policy is recommended for clarity in this area. Provided that you have followed your company’s policies and have a fair reason to dismiss (which is likely to be on grounds of capability or for misconduct) and there are not discriminatory factors to take into account, or there are but these have been considered and where required appropriate action taken and advice sought, a fair dismissal for long term sickness or frequent short term sickness absences is possible. For further guidance on managing sickness absence and how to fairly dismiss our article here goes into further detail, but if you would like bespoke advice on your business’ best course of action in your particular circumstances, our employment lawyers can help.
