Guide To Sickness Related Dismissals

• If the business has a sickness or absence policy, make sure it is complied with.
• Review the relevant provisions in the employee’s contract of employment pertaining to sickness absence and pay.
• Keep confidential records of medical certificates, correspondence, telephone calls and meetings.

• Investigate the nature, extent and likely duration of the medical condition causing the absence. Ensure the business has the up-to-date medical evidence that gives a clear prognosis. Please not it is important to obtain consent from the employee outside of any contract of employment
• If the absence is stress-related, refer the employee to the business’s stress policy (if one exists) or any counselling services that are on offer. Consider whether dismissal could be avoided by changing the employee’s role or duties.
• If the absences are short-term and intermittent, the business should investigate whether there is an underlying cause (medical or otherwise). If necessary the business should follow a capability or disciplinary procedure, setting timescales for improvement and giving warnings where appropriate.
• Maintain contact with the employee throughout the investigation, especially when the business:
  • receives medical evidence;
  • is considering what adjustments to make or whether an alternative position would be suitable;
  • is contemplating dismissing the employee.

Consider whether:

• The employee is disabled under the Equality Act 2010 (relying on medical evidence as required).
• Any adjustments to the employee’s duties or workplace would assist their return to work (or their taking less time off work if their absences are intermittent) and, if so, whether making those adjustments would be reasonable in the circumstances.
• There is another job within the business that might be more suitable for the employee.

Before taking the decision to dismiss, the business should consider:

• The importance of the employee and the position they occupy in the business.
• The impact their continuing absence is having on the business.
• The difficulty and cost of continuing to deal with their absence.
• Whether the business can avoid dismissing the employee (for example, by offering them an alternative position).
• Their age, length of service and the circumstances surrounding the employee’s absence.
• Any action that has previously been taken in relation to other employees in similar circumstances.
• Claiming under the terms of any permanent health insurance (PHI) policy or ill-health retirement if the employee has been absent long-term and is unlikely to return in the foreseeable future.
• Whether dismissal would have an adverse affect on any PHI entitlement the employee currently receives.
• Reviewing the medical evidence to make sure it is up-to-date.

• If the business has instigated a capability or disciplinary procedure and this has led to the decision business concluding dismissal may be appropriate, write to the employee inviting them to a meeting, making it clear that the business is contemplating dismissing them.
• Provide enough information about the circumstances the business is taking into account and the possible outcomes to the meeting, to enable the employee to respond meaningfully
• Hold a meeting with the employee and give them the opportunity to present their case against the dismissal.
• Once concluded, confirm the decision in writing to the employee.  The letter should:
  • provide the reason for dismissal.
  • confirm their last day of employment.
  • give them the right to appeal the dismissal decision.
  • ensure the employee’s contractual and statutory entitlements are met and that they receive the correct pay entitlement, including notice and holiday pay.
  • If an appeal is subsequently submitted by the employee, hold an appeal meeting.  In the same way that any outcome is communicated after the disciplinary meeting, confirm the appeal outcome to the employee in writing.

This employment law briefing just provides an overview of the law in this area.