Dismissal on Grounds of Poor Health
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This section gives guidance to employers faced with an employee whose illness means they are unable to carry out their work either through long term or intermittent illness.
Employment Tribunals expect employers to act with sympathy and consideration before deciding to dismiss employees whose health no longer makes it possible for them to carry out their work to the required standard. Our overall advice in the case of long-term illness to be fair and sympathetic but not to duck the issue. The following procedures should be followed to the letter in an unhurried manner. Primarily with a view to retaining the employee but if that is not possible to finding a satisfactory solution.
Employer's Actions
The guiding principal in any action to dismiss on grounds of ill health should be whether the actions taken at each stage would be those of a reasonable employer.
1. What contractual provisions exist for sick pay? Have those provisions been applied consistently to other employees? If the sick pay provisions are inadequate modify them for all staff, but once they have been set down apply them rigorously. One scenario of particular difficulty is when an employee has persistent intermittent periods of illness. Employers should make sure their sick pay arrangements take into account cumulative illness of this sort.
2. Review the contractual provisions as regards medical examinations. Does the contract give the employer the right to request a medical examination take place?
3. Ensure that the sick employee has a contact within the organisation (normally the line manager). Make sure the employee is informed about developments at work. There should be regular telephone contact and if absence is longer than one month home visits should take place with the employee's agreement. Make clear the purpose of such contact is purely a welfare matter.
4. If absence lasts longer than one month ask the employee to give the company medical advisor permission to approach the employee's medical advisor for a medical report. Note the employer should have no access to the report or its contents. The employee needs to give specific permission for the employer to receive a professional opinion regarding the employee's suitability to return to work only.
5. Request regular medical reports every three months.
6. After six months (or earlier if appropriate) request the company medical advisor to give an opinion upon transferring the employee to alternative employment/ ill health retirement.
7. If the employee is prepared to return to work consider a return on limited hours/ responsibilities. Act on the advice of the company medical advisor.
8. At the point of long term or intermittent absence where the absence is clearly damaging the working of the organisation, consider giving the employee a caution that it may be necessary to consider dismissal. Consider this particularly in the light of medical opinion regarding long term prospects.
9. Once sufficient time has passed to judge the employee's reaction to the warning, the employer needs to consider in their context and the light of medical advice is it now reasonable for them to dismiss the employee? The key question is could a reasonable employer be expected to wait any longer for the employee's health attendance record to improve, bearing in mind the interests of the organisation, the position which the employee holds and the need to be fair to him or her?
10. At this stage we recommend employers take experienced professional advice to test their reasoning is reasonable in the circumstances. The question to ask is have we followed all the reasonable steps and come to a fair conclusion that it is more likely that the employee will not be able to fulfil their contract of employment.
11. If dismissal is to be considered follow the organisation's disciplinary code (modified in the light of the employee's personal needs).
12. Give the employee/ representative a chance for a hearing, permit an appeal if the decision is taken to dismiss.