Every now and again, an employer may sometimes face the situation where an employee goes off sick for a long period of time and shows little or no prospect to their employer of ever returning because of their prognosis.

The normal route in such circumstances is to call a capability hearing on the basis that the employee is medically incapacitated. As well as the usual considerations of fairness, in some scenarios, it is also prudent for an employer to consider possible disability discrimination when making a decision about the concerned employee. Basically employers need to tread carefully to ensure that they are being fair in their decision making and are not subjecting employees to unlawful and discriminatory treatment.

The recent Court of Appeal decision in O’Brien v Bolton St Catherine’s Academy [2017] has offered some guidance to employers when dealing with long-term sickness. The Court made it clear that employers are not expected to wait forever for an employee to recover from illness and dismissal is sometimes a valid step when a return to work is not on the cards. However, employers considering a dismissal decision would be well advised to put safeguarding methods in place such as for example, keeping written records of any disruption caused to their business as a result of the employee’s absence. Employers should also carefully review all medical evidence produced during an employee’s absence period including any new evidence which may come to light during the dismissal process.
We have put together some useful points for employers to consider when dealing with an employee on long-term sickness.

  • Have a clear sickness policy in place so that you and your employees know where you stand and what the protocol to follow should a situation arise.
  • Keep in touch with your employee on a regular basis with a view to obtaining updates on their condition. Of course the amount of contact will depend on the individual circumstances and the illness.
  • When consulting with the employee, try and find out: the extent of the illness, the likely date of return to work, whether they require any adjustments to be made, consider alternative roles, create a plan for their eventual return (if this is likely), consider how their absence has affected the business and keep evidence of the impact.
  • Consider obtaining medical evidence and ensure that you comply with the requirements of the Access to Medical Records Act 1988. Ensure that any medical evidence is current before taking any decisions (including the decision to dismiss).
  • If during the disciplinary process, the medical position changes and an employee provides evidence that they have recovered, the evidence should be considered carefully.
  • Consider whether it is fair to dismiss the employee taking into account all of the circumstances.

If you would like to discuss sick leave, dismissal and the implications for your business, please contact a member of the Backhouse Solicitors Employment Team.

The Backhouse Team

Tel:      01245 893400

Email:  info@backhouse-solicitors.co.uk

Web:    www.backhouse-solicitors.co.uk