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Long-term absence dismissal not always unfair

Opinion Written by Sue Berry on 30th March 2017. Reading time: 2 minutes

Sick womanLong-term absence dismissal not always unfairLong-term sickness absence is thorny issue for every employer. Most managers are unsure of how to approach sickness absence, both short-term and long-term. “When does sickness absence become long-term?” “When can I start to manage sickness absence?” Just a couple of the questions you’ve no doubt asked yourself as a manager.

A Court of Appeal ruling this month has given clarity to the question regarding dismissal of an employee who is on long-term sickness absence. In his ruling Lord Justice Underhill commented, “There comes a time when an employer is entitled to some finality”. This means employers can potentially dismiss on grounds of ill-health. But it must be done fairly, and following due process.

Seeking finality

Making the decision to dismiss on grounds of capability due to sickness absence is not easy. The firm’s sickness absence procedure must be followed and medical evidence sought to support the decision made. Where medical evidence states that there is no likelihood of return, or the return date suggested is likely to be years away rather than weeks, there may be grounds for dismissal.

The process of gaining closure begins as soon as the person becomes sick. Resolving the sickness absence as soon as possible is important for both employee and the employer. Contact needs to be maintained with the employee ensuring they don’t become isolated, and also allowing for dialogue about their well-being.. The closure may be a phased return to work or it may be ill-health capability dismissal. The decision must be based on evidence.

Evidence

Records must be kept of the sickness absence including dates and the reason for the absence. There will come a point when it is appropriate to seek medical advice from the employee’s GP or an occupational health practitioner. It is really important to ask the right questions in order to gather the right evidence so that an informed decision can be made. Without careful thought about what information needs to be collected, this medical assessment and its associated evidence will be of no value.

Rehabilitation or dismissal

The journey back to work for someone who has been on long-term sick may be a slow one. When someone has been absent for many months they will have anxiety about returning. Things will not be the same as when they left. They may have new colleagues or new working practices and they will definitely take time to adjust. General practitioners will often recommend a phased return to work and if this is feasible then it is a great way to ease the person back. But it will be exhausting for the previously sick employee to get back into the swing of things.

Long-term absence dismissal not always unfair

When a medical practitioner states that the person is unlikely to be able to return to work, or return will be too far in the future to predict, then dismissal may be appropriate. It’s important to ensure all options have been explored before that final decision is taken. The decision to dismiss due to sickness absence should not be taken lightly. But, if a fair process has been followed and appropriate evidence supports the decision then the decision is likely to be a fair one.

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