Long term sickness absence can be a drain on the resources of any business, and small businesses particularly, even when any statutory or company sick pay entitlement has been exhausted. You are unable to recruit a permanent replacement and may be struggling to cover work.
So are you allowed to dismiss the employee?
Well, yes you can, if you can show that the absence is enough to justify dismissal and have acted “reasonably” in making that decision.
In reality what this means is that an employee should only be dismissed on the grounds of long-term ill health as a last resort, and after all other reasonable efforts to get them back to work have been fully considered.
What does reasonable efforts mean?
“Reasonable” is a word used an awful lot in employment. Fortunately for small businesses, it is recognised that what it is reasonable to expect of a large business and what it is reasonable to expect of a tiny employer are not the same.
Reasonable efforts to get them back to work would include considering whether a phased return, or reduced hours are possible, and looking at changes that could be made to the role or working arrangements either on a permanent or temporary basis. If the absence is related to a disability, this would involve looking at any “reasonable adjustments”.
You’d be expected to discuss adjustments with the employee, to get their input on what they think would help them, and to seek expert advice.
For larger businesses, redeployment to an alternative role may be an option, but if you are a smaller business, and have no other roles available, you are not expected to create one in order to keep your staff member employed.
How long does the employee have to be off before I can contemplate dismissal?
Again it’s about being reasonable. If you get to the point where you cannot reasonably be expected to wait any longer for your employee to come back to work, it may be fair to consider dismissing them.
At what point it would become reasonable for you to feel you have reached this stage will depend on the size of your business, the resources available to you, and the amount of disruption or difficulty the absence is causing you. Obviously in a small organisation with very limited resources, that point is likely to come sooner than in a big employer with lots of staff to move round and take up slack, and perhaps easy access to temporary staff.
It will also depend on prognosis at the time you are contemplating the decision. For example, if someone has been off for six months, and there is no realistic prospect of their return in the near future at that point, it may be fair to consider dismissal. But if someone has been off sick for six months and you have reason to believe that a return may be possible in a short period, you may not be reasonable to dismiss.
Taking medical advice
It is strongly advised not to consider dismissing someone for long term sickness absence without taking medical advice.
An Occupational Health professional, and/or the employee’s own doctor may be able to make suggestion as to what adjustments could enable the employee to return to work, and should also be able to offer an opinion as to the likelihood of the employee returning to work in the near future.
Although you must make your own decision about what is reasonable action in your business, demonstrating that you have taken and properly considered expert advice will help show that a decision to dismiss was reasonable.
How do I do it?
If you are contemplating dismissal, and have sought medical advice, considered adjustments and redeployment, you should write to the employee and explain that you are considering the possibility of dismissing them for capability reasons. You should ensure they have the right to attend a meeting to discuss this before a decision is made, and that they can bring a trade union official or colleague with them. Due to the nature of the dismissal you are contemplating, and depending on their health and other circumstances, you may wish to consider allowing an employee to bring a family member, and may also want to consider conducting a meeting at home or in another location preferred by the employee.
Dismissal for long term sickness absence is a very tricky area, and the actions you should take, letters you should write and how reasonable your decisions may be will be very individual depending on the exact circumstances involved.
For this reason we strongly recommend that you do not consider dismissing employees in these circumstances without taking professional expert advice beforehand, and remember it should be a last resort only.
If you need help managing sickness absence in your organisation or are contemplating dismissal, please contact me on 01480 387933 or email [email protected].