- 10 minute read
- Last updated: 24th September 2019
Where an employee remains on long-term sick leave or has a recurring pattern of time off work due to illness, you may have grounds for lawful dismissal for sickness absence, provided specific criteria are met. Employers, however, should proceed with caution and take advice to avoid risking tribunal claims.
This article covers:
- Fair dismissal for sickness absence
- Early retirement due to ill health
- Dismissals on the grounds of sickness absence
- Why would an employer consider dismissal for sickness absence?
By law, dismissal for sickness absence should be seen as a measure of last resort.
If an employee is on long-term sick leave, you must prove you have taken all reasonable steps to support the employee in their return to work. Depending on the facts of the case, this could include making any requested ‘reasonable’ adjustments to the workplace, role or working conditions, and removing any causes of ill health in the workplace, if applicable.
The employer must also have followed a lawful sickness absence procedure and treated the employee fairly and without discrimination throughout the process.
Where the employee is disabled, the Equality Act 2010 places duties on the employer to make ‘reasonable adjustments’ to support the return to work. Under the Equality Act, a disability is defined as a physical or mental impairment which has a substantially adverse and long-term effect on the individual’s ability to carry out normal day-to-day activities such as work.
What is reasonable will be determined by the circumstances, but the employer will need to formally assess any requests and make a decision based on how practical the adjustments are to make, whether they have the resources to fund the adjustments, whether the adjustment will be effective in overcoming or reducing the disadvantage in the workplace and if the adjustment will have an adverse impact on the health & safety of others.
If an employee is treated unfavourably as a result of their disability, they may be able to bring a claim for discrimination against their employer.
What does an employer have to do to prove fair dismissal?
Procedures in place
The employer should be able to rely on its sickness absence and disciplinary policy and procedures, provided they are in full compliance with the ACAS guidance and have been adhered to correctly.
A sickness absence policy can help to avoid misunderstandings over what is expected from employer and employee. It should include details of the employee’s responsibilities if off work sick, including how to report sickness absence, timelines for self-certified sickness absence, the use of Fit Notes, long-term sickness absence and sick pay.
The policy should also indicate how sickness absence will be monitored, including triggers for formal review meetings.
A comprehensive sickness policy will also look at how the organisation will contact an employee during a period of sickness absence, including guidance on the frequency of contact and who is responsible for making contact.
Return to work support should also be covered, including guidelines for making adjustments to roles, the work environment or work conditions to aid the return to work.
The sickness absence policy should be regularly reviewed alongside changes to related legislation, other company policies and the organisation’s sickness absence management processes.
Notifying of sickness absence
The process for recording sickness absence should include a number of key stages.
The employee should first contact their employer through the required channel as stipulated in the sickness absence policy to report that they will be absent due to sickness. This may be through a central HR telephone line.
Organisational policy should also specify the information the employee is to provide when notifying of their absence. This could include the first date of sickness absence, details of the illness or injury, when the employee expects to return to work, any actions they are taking to remedy the situation, such as making a doctor’s appointment, and if relevant, any factors in the workplace potentially connected to the ill health.
For employers, consistency in data will also make it easier to monitor overall sickness absence and identify trends in individual and workforce absence.
Contact during sickness absence
During a period of sickness absence, the employer should maintain regular contact with the employee, if appropriate, and in accordance with their sickness absence policy.
In general, such contact would be made by the absent employee’s line manager or supervisor. Training should be provided for line managers and other members of staff who will contact employees on sickness absence. This training should cover the purpose of the contact, recording details of the contact and how to apply that information to assist the employee in their return to work.
By making efforts to maintain contact during sickness absence, the employer can stay informed about the employee’s health and likely return to work date. The employee is also less likely to feel isolated.
Discussions may also highlight how the employer can assist the employee’s return to work, for example, through occupational health involvement or adjustments to working conditions.
Frequency of contact should be influenced by the reason for the absence. Regular contact with an employee absent due to work-related stress, for example, may not be appropriate.
The role of adjustments in aiding return to work
Supporting the return to work may involve making ‘reasonable adjustments’ to remove any disadvantage for the employee in carrying out their job.
Depending on the nature of the sickness and the employee’s disability or needs, this could include changes such as a phased return to work, help with transport to and from work, remote working from home, moving the employee’s workstation in consideration of reduced mobility, removal of heavy lifting and the provision of a working buddy.
If an employee has requested adjustments to be made, you will need to assess the implications fully. Employers may be able to refuse to make adjustments if they can show they are not reasonable.
What is classed as ‘reasonable’ will depend on the specific circumstances, including whether the adjustments are practical to make, what the costs will be to make the adjustments, whether the adjustments will help to remove or reduce the employee’s disadvantage in the workplace or whether the adjustments will have an adverse impact on the health and safety of others.
Employers are not required to change the basic nature of the employee’s role.
Return to work
The return to work process should be outlined in the organisation’s sickness absence policy.
Developing a return to work plan can help provide clarity for both the employee and the employer of the needs to be addressed, actions to be taken and the expected timescales. The plan should be developed in collaboration with the employee, with their input as well as advice from the employee’s medical advisers, and the results of any necessary workplace risk assessments.
On return to work, the employer should invite the employee to a return to work interview, to welcome them back into the workplace and as an opportunity to confirm the employee is fit and able to resume work, and discuss any issues or follow up actions that can support the employee in going back to work.
Patterns in sickness absence
Any employer should have processes and systems in place to monitor sickness absence across their workforce and identify patterns or trends, for instance, a high number of back complaints could lead to a reassessment of health and safety practices and improved manual handling training.
The option of ill-health retirement should be outlined in the sickness absence policy. If the employee meets the age threshold, and returning to work is not possible, early retirement may be a more appropriate solution to consider.
For dismissal by reason of sickness absence to be lawful, an employer will need to ensure they are meeting their duties by law. Employees must be treated fairly and without discrimination throughout the absence management process. The employer has to show they have done everything possible to assist with a return to work, and that the sickness absence has caused a level of disruption to the operation of the organisation.
The employer should show they have maintained contact with the absent employee and made any decision about return to work plans following discussion with the employee. Professional advice should also be sought to confirm the employee’s medical condition, such as from the employee’s doctor and occupational health adviser.
Options to assist a return to work should be investigated and discussed with the employee, for instance, adjustments to the workplace, a phased return to work or alternative employment.
Employers should also keep a record of all communications, whether with the employee, line manager, other members of staff, or related specialists, concerning the employee’s absence and return to work.
There are several scenarios where an employer might consider dismissal for sickness absence.
Long-term sickness absence with no recovery
Where an employee has been on long-term sickness absence for a significant period and their health has not improved to a level whereby they could return to work, even with adjustments, and there is no way of predicting when their health will improve, it may be that the employer feels that dismissal is the only option to take due to disruption caused to the business by the absence and the level of uncertainty as to when, and if, the employee will return to work.
Long-term sickness absence where no return to work plan can be agreed upon
Where an employee is on long-term sickness absence, the employer has done everything reasonable to plan and action a return to work, and agreement still cannot be reached between the employee and employer, then dismissal for sickness absence may be seen as an appropriate option. However, the employer must be able to prove that there is nothing further that can reasonably be done to resolve the situation and that they have treated their employee fairly and without discrimination.
Pattern of sickness absence
This could be an employee with recurring instances of short-term ill health, an employee with recurring instances of long-term ill health or an employee who calls in sick regularly in circumstances that lead the employer to believe the employee is being dishonest, such as avoiding certain shifts.
Employers should expect a satisfactory level of attendance from employers. Absence should be monitored, and where the standards are not met, this could be dealt with through the organisation’s disciplinary procedure.
As with any case of dismissal for sickness absence, the employer must prove that they have followed their sickness absence procedures and exhausted all reasonable options to support the return to work.
When dealing with long term sickness absence, an employer should consider the following legislation:
Health and Safety at Work Act 1974
- Will the employee be more at risk of injury, illness or disability when they return to work after a period of sickness absence? This may well lead to the necessity to carry out a risk assessment
- Does the employee’s illness or injury link in with any trend in sickness absence in the related workplace? Should an investigation be carried out to ascertain wider issues or risks?
- Have adjustments been made to the employee’s duties, workplace or working conditions to assist their return to work?
Employment Act 2002 (Dispute Regulations) 2004 and Employment Rights Act 1996
- Has the employer been treating fairly and without discrimination?
- Have all the correct procedures been followed and investigations made before dismissing an employee on the grounds of ill health?
Disability Discrimination Act and the Equality Act 2010
- Has the employee been discriminated against because of their disability and been treated less favourably than employees who do not have a disability?
- Has a disabled employee been offered reasonable adjustments to their working conditions so that they may return to work?
Do you have a question about sickness absence?
DavidsonMorris supports employers with all of their employment law and workforce management needs, including absence management and monitoring. We can advise on specific circumstances to help you decide on the best course of action for your organisation while remaining compliant with the law.