Dealing with Long Term Absence
Following the recent ECJ decision on holiday entitlements for those on long term sick leave, more employers than ever are considering terminating the employment of those who are incapable of working by reason of ill health.
Although such situations are difficult for all concerned, it is perfectly possible to terminate employment in such circumstances. However, Tribunals have emphasized that the employer’s approach should be based upon "sympathy, understanding and compassion".
The difficulty for employers is always how to show that a caring approach has been taken whilst seeking to address the sometimes increasingly pressing need to fill the post. In the end, whether an employer’s decision to dismiss an employee is deemed to be reasonable will come down to one simple question: could the employer have been reasonably expected to wait any longer for the employee to return.
At the very least, when exploring the situation and possible solutions, including termination of employment, the employer must consult with the employee in question. However, there is no obligation on the employee to keep in touch with the employer during their absence – the onus is on the employer to arrange discussions and to seek the employee’s opinions on any proposals before taking action. This can be difficult if the employee refuses to engage with such a process but the new Acas Guidance on Discipline and Grievance at Work (the Guidance) states that ‘employee and employer should keep in regular contact with each other’ which may put more pressure on the employee to participate in future but means that employers must also be more proactive and should not ‘forget about’ those on long term sickness absence.
With cases of long term sickness absence, the actual ill health of the employee is not usually in doubt. However, the employer still needs to be able to show that dismissal was a reasonable response to the situation and that a fair procedure was followed. Although there is no absolute requirement to consult with a medical professional, any decision which is taken without the benefit of medical advice (including, most importantly, advice as to the prognosis for the employee) could be subject to challenge.
Even in cases where the employee themselves has said that they do not believe they will return to work, medical evidence that the employee will not be fit to return to work any time soon can often be the difference between a fair and an unfair dismissal.
It is important that the medical evidence relied upon is up to date. An employer who dismisses on the basis of evidence which is more than 6 months old could be faced with an argument that the decision is not based on the best evidence. The Guidance sets out, in detail, how employers should go about contacting GPs and obtaining medical records and is worth reading before the employee’s doctor is contacted.
However, the Guidance recommends that, where there is reasonable doubt about the nature of the illness or injury, employers should consider appointing an independent expert instead of contacting the employee’s own GP. This can also be useful if the GP or consultant is unable or unwilling to provide a detailed report or in circumstances where the employee is likely to be unhappy with the report or the questions that need to be asked by the employer.
Where an employee refuses to cooperate in providing medical evidence from their own GP or to undergo an independent medical examination, the Guidance states that the employee should be told in writing that a decision could be taken on the basis of the information available and that the decision could result in their dismissal. This new guidance should provide some comfort for those dealing with uncooperative employees but care should still be taken to ensure that the decisions taken are not based on assumptions as to what the employee can or cannot do or guess work as to what is wrong and when the employee may return.
The impact of the Disability Discrimination Act 1995 (DDA) must also be considered before any decision to dismiss is taken. Not only should the employer consider whether the employee could be classed as disabled under the DDA but, perhaps even more importantly, the employer must also consider (with the benefit of medical advice) whether there are any adjustments which can be made in relation to premises or arrangements which would alleviate any substantial disadvantage that the employee may be suffering as a consequence of the disability. The Guidance also makes specific mention of the need to consider redeployment to a different type of work before considering dismissal. The employer is not expected to create a special job for the employee concerned, or to be a medical expert – he is simply to take action on the basis of the medical evidence.
Factors to take into account
Making assumptions about whether or not an employee will be able to return to work in the near future or, even more crucially, whether an employee’s illness could be classed as a disability is a recipe for disaster: always get medical evidence when someone has been off for a prolonged period so that you can be sure of the risks.
Having established, on the basis of medical evidence, that the employee is not going to be able to return in the near future and (if disability is an issue) that there are no adjustments that can be made (including redeployment), the next step for the employer is to show that employee’s particular circumstances and needs have been considered and weighed up against the needs of the business to have someone in post. Some of the factors which an employer will need to show that they considered before making the final decision to dismiss are:
- The nature of the illness;
- The likelihood and timescale for improvement;
- The likelihood of recurrence or some other illness arising;
- The nature of the job;
- Whether it would be possible for the employee to access any Permanent Health Insurance;
- Whether ill health retirement is available; and
- The need for, and the importance of, the work and of the employee including whether (s)he fulfils a key role or, conversely, is one of a number of similar employees from whom “cover” can be expected.
If there are no practical solutions to the problem other than dismissal it may be reasonable, in some cases, to dismiss without a warning, for example where medical evidence clearly establishes that the employee will never return to work. This would be the exception, however, an employer should always consider whether a warning would be appropriate. It must be stressed that this is not a warning in the sense of a disciplinary warning but is really a note of caution to the employee that the stage has been reached where, it will become impossible to continue with the employment if the employee remains unable to work.
If, following the warning, the absence continues beyond a reasonable period or, the employee returns to work, only for there to be further periods of absence, the warning will have laid the foundation upon which the employee may then be dismissed provided an appropriate procedure is then followed.
In any event, there should be at least one meeting with the employee if a dismissal is to be fair. If an employer has written to an employee inviting them to a meeting to discuss a possible dismissal on the grounds of ill health before 6 April 2009, then it is important to comply with the Statutory Dismissal and Disciplinary Procedure. Even if an employer has categorical evidence that the employee will never return to work if the Statutory Dismissal and Disciplinary Procedure is not followed, the termination of the employee’s employment will be automatically unfair.
Even for those employers who start the dismissal process after 6 April 2009, the best procedure is to still write to the employee in question inviting him or her to a meeting to discuss their possible dismissal on the basis of ill health. During the meeting the medical position should be discussed and the situation should be fully explained to the employee so that he or she understands quite clearly that, depending upon his or her comments or representations, there is a chance that the meeting could result in dismissal. The employer must, however, avoid any implication that the decision to dismiss has already been taken and cannot be influenced by the discussions taking place.
If the employee does not raise any new issues which lead to a change of heart, proper notice of dismissal, in accordance with the contract of employment or the statutory minimum, must be given or payment made in lieu. As a general rule, during the period of notice the employee is entitled to receive full salary even if prior to dismissal he or she had dropped to half-pay or even no pay at all. In such a case, payment in lieu of notice must, therefore, be calculated by reference to the full salary payable albeit that payment may sometimes be calculated on the basis of net pay rather than gross pay. This general rule does not apply, however, in any case where, by virtue of the contract of employment, the employee is entitled to notice of termination that exceeds the statutory minimum period of notice by more than one week. In such a case, although notice must still be given, or a payment made in lieu, the pay during the notice period is limited to whatever the employee might be due, if anything, under the contract of employment.
Other payments, such as payment in lieu of untaken holiday entitlement, may also be due to the employee and the employer should take care to ensure all such sums are paid in order to avoid breach of contract claims.
In summary, dismissal because of long term ill health absence is possible but it is a slow process. Dismissal should only be contemplated after medical evidence has been obtained and discussions with the employee have revealed that there is no possibility of a return to work in the near future and that there are no other options available. Consideration should always be given to a disability angle (and in such cases, legal advice should be sought) but employers should not be afraid of tackling ill health dismissals once all the evidence is in place.
For further help or advice on dealing with long term absence, contact Burnetts employment law team on 01228 552222.
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Published: Wednesday 18th March 2009