Can an employee be dismissed on long-term sick leave?
Yes it is possible to dismiss an employee while they are on long-term sick leave but in order to avoid claims such as unfair dismissal and disability discrimination employers need to follow a fair and proper procedure.
Consultation with the employee
This involves keeping in touch, usually by phone, on a regular basis. The employer should keep notes of the discussions. The employer should find out how the employee is, any treatment he is having or is expected to undergo and if there is a date when return to work is envisaged.
If a potential disability or mental health issue is involved, consider how best to undertake this consultation. Be prepared to make adjustments to the process.
An employer contemplating dismissal for health reasons should first obtain a medical report.
The employee’s GP (or his consultant) is the usual starting point for a medical report; the employer should obtain a report and not rely solely on the information contained in any GP ‘fit notes’ the employee is providing.
Consider carefully the questions the employer wishes the doctor to answer. If the employee may be disabled the employer should ask for an opinion on whether the employee may meet the definition of disabled under the Equality Act 2010 and what adjustments might enable the employee to return to work.
It may be necessary to get a second opinion, if the first report is inconclusive or lacks detail. If the employer ends up with two conflicting reports, it may be advisable to get a third one.
From 2015, employees on sick leave may be referred by their GP to the new Fit for Work Service (formerly known as the Health and Work Service) regarding a return to work plan. If so, the plan will be a key source of information about the condition, whether/when a return to work may be possible and any possible adjustments if the employee is disabled.
Consider disability issues and alternative employment
If the employee is disabled (and, if in doubt, the employer should err on the side of caution) the employer will first need to think about any reasonable adjustments to enable the employee to come back to work, or adjustments to implement when the employee does return, as an alternative to dismissing the employee. This process should involve a review of the medical evidence and discussion of possible adjustments with the employee.
The employer should document the discussions with the employee and any adjustments put in place and review them when the employee has been back at work for an appropriate time.
If the employee cannot return to his job, even with adjustments, the employer should consider if there is alternative work he could do instead and discuss this with the employee. Having gone through the steps identified above, the employer may need to proceed to dismissal. That being the case Harris Law will be happy to talk you through the dismissal procedure. Why not download our free guide to Sickness Absence by clicking on the link below.