Employers may well have a great deal of sympathy with an employee who has been on sick leave for a substantial period of time. However, long term sickness absence can place businesses under strain. A team may be understaffed and an employer reluctant to hire a temporary or permanent replacement in the hope that the unwell employee will recover and return in the short term.
If, unfortunately, it appears that the employee’s health is unlikely to improve enough for them to return to work in the short term it may be necessary to consider whether their employment should come to an end. Sickness absence or capability can be a fair reason for termination but it is vital to ensure proper procedures are followed as an employee on long term sick leave may be disabled within the meaning of the Equality Act 2010 and be protected from unlawful disability discrimination.
An employer should not take steps to dismiss an employee if the absence is caused by pregnancy or any maternity related illness. This would amount to unlawful discrimination.
If an employer is considering terminating employment, it will be vital to first meet with the employee to discuss their sickness absence. Prior to taking any action, employers should take steps to understand the employee’s medical condition, whether they may be disabled and likely prognosis. Medical reports should be obtained from suitably qualified doctors or occupational health specialists. Careful consideration should be given as to what questions to ask of any medical expert, and in addition to a prognosis consider asking for a suggestion of any reasonable adjustments which may be required or which could enable the employee to return to work.
When considering termination, the decision maker should carefully balance the rights of the employee and those of the business. This will usually include assessing whether it would be reasonable for the employer to wait any longer for the employee to return to work and whether any reasonable adjustments should be made in order to accommodate a disability or mitigate its effects. Factors which may be relevant include the employee’s record and length of service, whether the employee is in receipt of company sick pay, the size of the organisation and the impact the absence is having on other team members. If the employee is expected to undergo significant treatment in the short term which could alter their prognosis it may be reasonable to postpone any process until after the treatment takes place.
