Whether you are an employer or an employee, you may be unclear about what should happen when an employee is absent from work due to ill health. This blog will explain what an ill health capability dismissal is and what steps should be taken for an ill health capability dismissal to be lawful, as well as answering a number of other questions too.
Contents
- Ill health capability dismissal – what is it?
- Can an employee be contacted whilst on sickness absence?
- Can an employer dismiss an employee while the employee is on sickness absence?
- How long is an employer expected to wait before dismissing an employee on ill health?
- How much information is needed before a decision to dismiss can be reached?
- Can a former employee bring an Employment Tribunal claim if it was a capability dismissal due to ill health?
Ill health capability dismissal – what is it?
The Employment Rights Act sets out fair reasons for dismissal. Capability is one of those reasons. Capability relates to circumstances when an employee is unable to perform the duties required. Capability concerns underperformance or when an employee is unable to perform the duties of their role as a result of ill health. This blog will only be discussing the ill health aspect of capability.
An ill health capability dismissal is a situation where an employee’s employment is terminated due to the employer concluding that the employee was unable to perform the duties of the role as a result of illness.
Can an employee be contacted whilst on sickness absence?
Yes, if you would like more information on this subject, read our blog Long term sick – keeping in touch. Essentially, it is important to maintain contact in order to devise appropriate next steps. For example, discussion around what may help the employee to return to the workplace, or conversations to understand the illness or disability and consider any medical advice received.
Can an employer dismiss an employee while the employee is on sickness absence?
Yes, an employer can dismiss an employee while they are on sickness absence. This is because it is ultimately for the employer to decide if a dismissal should occur. However, the employer must act reasonably: a dismissal should be regarded as a last resort, with the dismissal being the final step in the process. If the issue is not approached with care, an employer may well not be successful in defending an Employment Tribunal claim.
How long is an employer expected to wait before dismissing an employee on ill health?
The question should not be how long is an employer expected to wait before dismissing an employee on ill health? Instead, the question should be ‘does the employer have enough information to make an informed decision that dismissal is reasonable in the circumstances’?
Perhaps, there are policies in place relating to the management of absences concerning ill health, or there are particular procedures relating to ill health retirement. If there are such processes in place, they should be followed.
How much information is needed before a decision to dismiss can be reached?
It is not a matter of simply gaining as much information as possible. Information from sources such as occupational health, or the information on Fit notes, is often useful. However, it is important to consider what is done with that information. For example, what steps could be taken to support the employee back to work, or support their recovery? For more information on the role of occupational health, read our blog Can occupational health overrule GP? If you would like to know more about Fit notes, read our blog https://plotkinandchandler.com/fit-note-guidance-for-employers/
Can a former employee bring an Employment Tribunal claim if it was a capability dismissal due to ill health?
Yes, a former employee could bring an Employment Tribunal claim due to being dismissed for ill health. For example, an unfair dismissal claim could be brought (if the employee had a sufficient length of service) because the effects of the illness, and the likelihood of continued absence, were not properly considered. In addition, if the employee is disabled, there may be allegations of discrimination. It may be alleged, for example, that further steps could have been taken to support the person back to work, or that dismissal was unnecessary because there were less severe alternatives available.
Given how difficult these issues can be to navigate, and the potential consequences if the correct action is not taken, it may well be useful to gain professional advice early in the process. Doing so will ensure that any action taken is appropriate in the circumstances.
Plotkin & Chandler is a consultancy firm which works exclusively in the areas of HR and employment law and advises employers and employees.
If you are an employer, we offer HR training and consultancy on a number of topics relating to managing absences due to illness. Furthermore, we can assist with all aspects of defending an Employment Tribunal claim.
If you are an employee and you are on long term sick, and want to know the options available to you, or you would like to discuss pursuing an Employment Tribunal claim, we can help.
To discuss your situation and the ways in which we can help, call us on 020 3923 8616 or email us at info@plotkinandchandler.com
