The Employment Rights Act clearly states that it is fair to dismiss an employee for reasons related to “capability”.
There will come a point when an employee who is absent through long term sickness is incapable of doing the job they’re employed to do but the question is – when is that time? There is no set period of time at which an employee becomes incapable of doing their job and/or when the employer says “enough is enough”.
Whilst the law says “capability” is a fair reason, you must still follow a fair process and act reasonably. The capability issue could be a performance factor but if it is sickness/absence related, you must also establish the true medical condition which may involve a report from a GP and/or a report from an independent Occupational Health specialist and meet/discuss/consult appropriately with the employee before deciding whether or not to dismiss.
What should be considered?
- The nature and type of the illness – be careful of conditions covered by the Equality Act
- The prospect of the employee returning to work and the likelihood of the illness recurring and/or absence continuing
- The need for someone to do that work and the impact on the rest of the team
- Operational disruption to the business
- The employee’s understanding of the position – specifically, are they aware that this situation could result in employment terminating
- The employee’s length of service
- Reasonable adjustments
- How similar situations have been manged previously – is there consistency in approach?
Protection under the Equality Act
It is also necessary to be mindful of medical conditions which give the employee protection under the Equality Act. There are many conditions which are established as giving protection under the Equality Act and these include Arthritis, MS, Motor neurone disease, bi-polar, ME, long Covid as well as visual impairment, HIV, obesity. According to the legislation, conditions which are covered are defined as having a “substantial” and “long term” effect on daily activities.
One isolated medical certificate for 2 weeks saying “work related stress” is not going to give an employee protection under the Equality Act.
Clearly it is important to understand the underlying health condition, long term prognosis and any capability related termination must consider whether there is a condition that could give rise to a disability discrimination claim with protection under the Equality Act.
If there is a disability you are under a duty to consider making reasonable adjustments.
In addition, before terminating on grounds of capability, it is also necessary to
- Know the up-to-date medical position
- Consult fully and carefully with the employee
- Follow a process/procedure
- Consider alternative courses of action as well as roles which might involve lighter duties.
Also – ask the question – is the Company acting reasonably and showing the actions of a reasonable employer in the circumstances?
If the decision is taken to dismiss on grounds of capability, there might be a risk of an unfair dismissal claim if the employee has more than 2 years service.
It is reasonable for an employer to conclude that there must be an end point to situations where employees are on long term sick but you cannot download an app (yet!) and see what that period of time might be. Each case must be taken on its merits and every situation will have a different set of circumstances and challenges but it is important to be mindful of how situations in the business have been manged before – precedents?
Medical reports and OH referral
Medical reports must be comprehensive, up to date and carefully interpreted and independent Occupational Health advice is excellent in facilitating this process.
It is quite feasible that an employee may refuse consent for the Company to approach a GP for a report or be unwilling to engage with OH although there may be specific clauses in their contract covering such situations. But if consent is denied, the standard response is that the business will proceed to make decisions without the benefit of up to date clinical reports.
Termination with notice
Long term sickness is clearly not a gross misconduct offence so, any termination would be with contractual notice and it is advisable to manage any termination of employment due to long term ill health via a settlement agreement or an ACAS COT3.
Terminating an employee, especially one with long service and an underlying health condition will always be difficult and sensitive to manage as well as highly emotive and the business will be judged by its employees on how they have managed the situation.
Adrian Berwick provides HR support to business and has considerable experience in managing long term ill health cases and works with OH specialists. If you want help dealing with a difficult issue, contact Adrian on 07885 714771 or firstname.lastname@example.org