If you have an employee who has been off work consistently due to sickness or a long-term illness that has prevented them from doing their job, you might be wondering if you can terminate their employment contract.
However, this needs to be carefully considered and the situation assessed and handled correctly to avoid legal ramifications. Any such employee must be dismissed fairly and sensitively to mitigate the risks of legal action. Here, we have a look at what to keep in mind in the event of dismissing someone who is on sick leave.
Several reasons can lead to an employee being dismissed. Common contract breaches can include
It is fair for employers to expect satisfactory attendance from employees. If a staff member regularly takes sick days that lead the employer to believe they are being dishonest, then standards are not being met, which could trigger a formal review.
Regardless of the actions of a staff member, it is vital to develop a fair sickness absence procedure to put in place for your organisation. If the employee already has warnings in their file, they can be dismissed for a non-serious breach of contract. For a serious breach, they can be dismissed for a first offence. This is classed as gross misconduct.
In your long-term sickness absence policy, you should establish a point at which a formal review is triggered if an employee is in breach of your procedures. It is essential to clarify specific points in your policy, for instance:
If an employee is unable or unwilling to comply with the points in your policy, this could trigger a formal review with them, which could potentially lead to dismissal.
No employer will take the dismissal of an employee lightly, but if you do need to let someone go, it’s essential that you carefully consider the employee’s right to contest your decision to terminate their employment.
According to Acas, even if an employee is off work due to sickness, they may still be able to attend a formal hearing. Employers need to consider ways to facilitate this, including visiting the employee at home or holding the meeting in a neutral venue. Post-COVID, this may also include videoconferencing.
In certain circumstances, a formal hearing can be conducted without the employee, but they will still be able to appeal any final decisions made.
If the employee is old enough, you might be able to suggest early retirement on the grounds of ill health. This option can be considered if medical advice states that the employee will not be able to return to work, and they will be able to claim a pension or lump sum under their pension scheme. The employee should contact your HR department in the first instance to start these proceedings.
Your long-term sickness policy should also consider cases where an employee has become seriously ill and should detail how you aim to help the employee and how you plan to bring their role to an end. This could include financial assistance, such as a cash lump sum or pension payout to help accommodate their needs.
Your long-term sickness policy also needs to explain that while your employee is not required to divulge information about their illness to you, it is advantageous to do so to enable you to arrange appropriate support.
It is crucial that before any action is taken against the employee, you should address the issue with them to determine if there is anything that can be done to support improved attendance. Also, examine whether it is the job that has made them ill and discuss a reasonable period to be off from work to recover from the illness.
The employer can provide support to help the staff member return to work, for example, a phased return that includes reduced hours or duties. This should be discussed with the employee and an HR manager and be regularly reviewed, with further adjustments if necessary.
If an employee has a disability, then it is an employer’s legal duty to support them in the workplace. If you dismiss an employee due to a disability, that would be classed as discriminatory dismissal.
The employer must make reasonable adjustments to help support the employee, which could include making changes to their work station, their hours of work, or their duties and tasks, all of which can help the employee return to work sooner and reduce absenteeism.
If you have an employee on long-term sick leave and are unsure of your legal responsibilities and rights, then get in touch today to talk to one of our employment experts for help and advice.
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