The occasional absence from work for sickness in inevitable. This will usually be accepted by your employer and may be paid or not paid. Unfortunately, long periods of employee sick leave can cause significant problems for businesses, which may leave you concerned as to whether or not your employer has reasonable grounds for dismissal.
However, dismissing an employee on long term sick leave is not necessarily a straightforward option for an employer, who will not want to run the risk and cost of a claim for unfair dismissal. That means it’s very important that employers treat an absent employee reasonably and supportively and follow a careful procedure before making any decision to dismiss.
Contact from your employer when on sick leave
When an employee is absent on long term sick leave, employers will see it as important to keep in contact with them. Note that this doesn’t mean calling them every day and asking when they are coming back, as this may amount to unreasonable treatment and give rise to a claim in its own right.
However, you should expect your employer to keep in touch about how you are, your prognosis and when you think you will be able to return to work. How often it is reasonable to do this will depend on the particular circumstances, but you should make efforts cooperate in this contact.
Assessing your health
Before taking any action to dismiss, your employer is obliged to:
- look for ways to support their employee – e.g. considering whether the job itself is making you ill or exacerbating your illness and needs changing
- give you a reasonable amount of time to recover from your illness
- get an up to date medical report setting out your diagnosis and how long this is expected to last. The report may potentially include an indication of how your sickness affects you at work and what can be done to assist you. This process is seen as necessary and good practice so you will be expected to cooperate, and your contract of employment may compel you to.
Sick leave & disability discrimination
Bear in mind that your condition could well amount to a disability under the Equality Act 2010. You may not see yourself as a disabled person, but an employee will legally be classed as having a disability if their absence is caused by an impairment which has a substantial adverse effect on day to day activities, and is recurring or likely to last for 12 months or more.
If this is the case, you have the right not to be discriminated against because of the disability. This will make it unlawful for your employer to dismiss you simply because you have the disability.
This does not prevent you from being dismissed because you have been absent with your disability, however, because in this case your employer can do so if they can legally justify the action. This means that they will need to show that the action taken to dismiss you is proportionate and meets a legitimate business need.
If you can show that your employer cannot legitimately argue that they need to dismiss, or there are other ways they could deal with your absence that do not involve dismissing you, they may be liable for discrimination.
Your employer may also need to make reasonable adjustments where a physical feature of your workplace, or a policy or practice of your employer puts you at a disadvantage because of your disability. This is usually most relevant when your employer is using an absence policy to dismiss you; it will need to be adapted where it does not take into account your particular situation, for instance in the amount of time off that triggers dismissal.
Your employer must be careful not to involve itself in disability discrimination, and you should be particularly mindful of this, as there is no statutory cap on the compensation you may be entitled to.
Unfair dismissal: how long have you been employed?
If you have been employed for more than two years, your position will be different from those with a shorter length of service, as longer term employees are protected against unfair dismissal. To avoid unfair dismissal your employer will need to:
Receive an up to date medical report
Your employer will generally be expected to have an up to date diagnosis and prognosis of your condition, and for this to be uncertain as to when you will be able to return to work or for it to say that you won’t be able to return to work for a reasonably significant period of time.
Explore all options
Your employer should explore alternatives to dismissal. For example, would a change of position or a reduction of hours help you either to come back to work initially or as a permanent change? Would flexible working assist or are there any other reasonable ways which you can be supported and helped to return to work?
Involve you in decision making process
Your employer will normally be expected not to unilaterally present you with their solution. Instead, they should seek your input.
Adopting a fair dismissal procedure
Your employer will have to follow a fair process of dismissal. What this looks like will depend on your particular circumstances, but will typically involve obtaining up to date medical records, meeting with you to discuss the proposal to dismiss and get your views and suggestions, plus an appeals process.
Ideally, your employer will have a long-term sickness absence policy in place. An example of this would be one which provides for different stages, for example, that after an absence of 28 days the employee should provide a medical report and or attend a “long term sickness review meeting”. The next point in the process might be after 3 months absence and the final stage might be at 6- or 12-months’ absence.
Less than 2 years’ employment?
Employees with less than 2 years’ service are not protected from unfair dismissal in the same way as longer serving employees are. However, discrimination must be avoided, and it will usually be advisable for them to follow a fair procedure as suggested above. Bear in mind also that the imposition of unilateral changes to your way of work may also give rise to a claim for unfair dismissal.
Facing dismissal for being on sick leave?
If you are on long-term sick leave and are worried about your job security, please get in touch with our team of employment law specialists. We are highly experienced in dealing with these situations.