Can you dismiss someone who is on long term sickness absence?
It’s a very difficult situation if you have an employee who is off on long term sickness absence or with an underlying medical condition. Clearly it is not their ‘fault’ that they are unable to attend work and we all want to be compassionate when someone is genuinely unwell.
It is common for employers to think that there is nothing they can do if someone is on long-term sick or has an underlying medical condition, apart from wait for them to return or cope with excessive absences.
This is not the case. It is important for every employer to consider the needs of the business and the general impact the employee’s absences have on others. While possibly sounding harsh about it, if an employee is not capable of performing their job role, providing a fair and recognised process has been followed, there will come a point when the company can fairly bring their employment to an end.
The way to managing long term sickness (or excessive sickness) is to have a clear procedure in place and to address cases fairly and consistently. It requires taking reasonable and appropriate steps.
So what needs to be done?
It’s good to talk! So firstly, you need to keep in touch with the employee. Your policy should set out how this is likely to work.
Set a time frame in which you will start to make more enquiries. i.e. if an employee is or is likely to be off for a period of more than 4 weeks start to make further enquires.
Get information and support from medical experts. As an employer you are not a medical expert and you are likely be criticised (or worse!) for dismissing an employee without first having obtained a medical opinion (and going through a recognised formal procedure). You should ask for consent from the employee to refer them to Occupational Health (this would be preferable) or ask for a report from the employees GP or consultant (or other health professional).
A medical opinion may also provide guidance on what adjustments you can reasonably consider or how you may be able to support the employee in helping them return to the workplace (with or without ‘reasonable’ adjustments).
Talk to or meet with the employee. This may start as a welfare conversation (usually informal) before progressing to the formal capability procedure. If you have obtained a medical report, discuss this with the individual. It is always advisable to seek HR advice before taking formal action and certainly before dismissing an employee for incapacity.
By following a fair procedure, you may be able to help the employee return to work. When it is clear to you (by means of a medical opinion), that they may not be able to return (i.e. within a reasonable time period or at all) you will follow a formal (capability) procedure to consider termination of employment.
If you find yourself in the position when you believe that someone’s absence is not genuine or they are malingering, following a clear procedure, and addressing the matter early, will allow you reach these decisions earlier and deal with them.
Many employers feel out of control when they are faced with employees with an underlying medical condition or long-term sickness situation. This does not have to be the case. If addressed early and appropriately it will keep you in control and alleviate some of the frustration that can come with having to deal with these difficult and often sensitive situations.