Ill Health Capability Dismissal Procedure

Amanda Beattie

Amanda Beattie

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12 Apr 2019

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There’s no straightforward way to let go of an employee due to ill health. There are five fair reasons to dismiss an employee, they are:

  1. Misconduct. 
  2. Redundancy. 
  3. Illegality.
  4. Capability.
  5. And other substantial reasons.

Dismissing staff due to sickness is dependent on their capability. This requires you to prove that you’ve dismissed them because of their inability to perform tasks, as opposed to discriminating against them. You’ll also have to show that you’ve given them fair opportunities to improve.

It’s important to have a procedure in place to avoid claims of discrimination or unfair dismissal.

This post explores the process for termination of employment due to ill health.

How to fairly dismiss an employee on grounds of ill health?

Dismissal should be a last resort after exhausting other efforts. Remember to consider reasonable adjustments such as flexible working hours, remote working or issuing alternative responsibilities.

If you aren’t able to make reasonable adjustments, then it may be fair to dismiss them by reason or incapability.

To avoid claims of discrimination, you’ll have to prove that dismissal was fair and as a result of their incapability.

This includes evidence of reasonable adjustments made as well as any other opportunities provided to improve said employee’s performance or to return them to work.

Before dismissal on grounds of capability due to ill health, you’ll need to find out the current medical positions. Consider contacting the employee’s GP (with the employee’s permission, of course), for a report on their illness and their recommendations in relation to working.

Remember to request ‘fit notes’ after prolonged absences. These are a great way to prepare employees for returning to work. It gives you the opportunity to gain insight into what the doctor thinks could get the employee back to work.

Some factors to consider before dismissal include the:

  • Nature of illness.
  • Likelihood of reoccurring absences due to ill health.
  • Length of absence.
  • Length of service.
  • Impact on business.
  • Impact on other employees.
  • Organisation’s sickness policy.

You can also consider hiring an occupational health specialist to carry out a health assessment. Conducting this assessment allows you to confirm what the problem is, how it’ll affect their job and when/if they’ll be ready to return to work.

Dismissal during the probationary period due to sickness

While dismissal during the probationary period due to sickness is not uncommon, it’s important to take extra precaution to avoid claims of discrimination.

It’s understandably frustrating to hire an employee on a three to six-month probation period only for them to take some weeks off due to illness.

Instead of dismissing a new recruit due to a disability, you may consider reasonable adjustments like extending their probation period to give them more time. Remember to inform the employee about this extension and your right to do so.

Remember that you have a legal duty to support disability in the workplace. Before you consider dismissing an employee, you need to prove that you’ve exhausted all other avenues of trying to support them.

Dismissal due to ill health: Benefits

Apart from Statutory Sick Pay (SSP) when capability dismissal is due to ill health, other benefits include:

  • Employment and Support Allowance (ESA).
  • Personal Independence Payment (PIP).
  • Universal Credit.

Most employee benefits including ESA are now covered under Universal Credit. However, there’s also a ‘new style ESA’ that employees unable to work or with reduced hours may be eligible to depending on their National Insurance record.

Expert support

Contact us today for advice on absence and sickness policies that works for your organisation. Speak to a Croner expert on 0808 145 3375.

Disclaimer: These guides are for guidance only and should not be treated as a substitute for specific legal advice on your situation.

About the Author

Amanda Beattie

Amanda represents corporate clients and large public bodies, including complex discrimination and whistleblowing claims. Amanda also drafts and delivers bespoke training regarding all aspects of employment law, including ‘mock tribunal’ events; in addition she also frequently drafts employment law articles for various publications for Croner and their clients.

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