Where an employee is absent for an extended period of time, and it appears that they will be unlikely to return to work within a reasonable time frame, you may wish to dismiss them, but it is very important that you follow a fair procedure.
The golden rule of dismissal is that it is not enough that the employer has a valid reason to dismiss someone – you must have acted reasonably in the circumstances in treating it as a sufficient reason for dismissing the employee and you must have followed a fair procedure.
Here are 5 key things to remember when handling long-term sickness absences:
Sickness absence policy
In your sickness absence policy, you should have a procedure for dealing with long-term sickness. When drafting this policy, you should think about how should employees keep managers informed when on long-term sick leave and when they expect to return to work; when will you refer the employee to an occupational health adviser and/or seek a report from the employee’s GP and what steps will you take to try and help the employee back to work.
Be warned that applying your standard sickness management triggers to disability-related or pregnancy related absences could land you in trouble.
For example, there are different considerations to keep in mind when you are dealing with an employee who has a disability. Under the Equality Act, a worker will be considered disabled under the Act if they can show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities. In these cases, it would be necessary to make the necessary reasonable adjustments. Contact your Employment Law Adviser to find out more about this.
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You will need to investigate the prospects for their return and consider what actions can be taken to facilitate their return to work, such as a phased return to work.
You should seek medical advice and have meetings with the employee to explore the employee’s condition. You cannot force an employee to consent to sharing the medical reports with you, but you can make clear that without this evidence, you will have to make decisions on what information you do have.
The employee has the right to be accompanied to these meetings by a colleague or trade union representative. If an employee is too sick to take part in the meeting, you should try and make alternative arrangements to involve the employee, which could mean holding the meeting at the employee’s home or accepting written representations. Before dismissing, you should take into account any representations made on behalf of the employee.
This is by no means an exhaustive list but highlights some of the key things employers need to think about. Our Employment Law Advisers can provide you with step by step guidance and draft any letters or other necessary documentation.