08 Jan 2021
An employee on long-term sick leave can place uncertainty on the business. You may ask yourself:
- Will they return to work?
- If they do, will they assume the same role as before?
- Is there enough staff to cover for the absent employee?
You must balance giving the individual enough time to recover from their illness or injury with the need to ensure you cover their work. While also considering the negative effect it could have on your customers and the rest of your team.
There may come a point when it’s no longer viable for your business to keep the employee’s job open. Or it may seem unlikely their health will improve enough for them to return. If this time comes, you might make a dismissal on the grounds of capability (ill health).
Like any dismissal process, you must ensure you follow a fair process. We’re here to help you with making this tough decision.
Can I dismiss an employee on long term sick leave?
Yes, you can. This can only happen if you follow reasonable capability procedures. There are a few legal areas which can arise when going through this.
You risk an unfair dismissal claim and an employment tribunal, if the employee has two or more years' service.
As health can be linked to disabilities, you must safeguard against discrimination. Unlike unfair dismissal, this has no time limit, which makes it more difficult than other dismissals. The law requires you to explore reasonable adjustments to enable them to return to work before making a dismissal on the grounds of capability.
Capability dismissals and long-term sickness absence
Capability dismissal refers to a staff member's ability to perform the required responsibilities in their current role.
Capability dismissal is a contentious issue and one that often ends up at an employment tribunal. This is because it's a rather fluid term. It depends on the performance levels of your business.
You need to handle the situation sensitively if the employee is incapable of performing the tasks required because of ill health. Capability dismissals are difficult and require compassion.
Although this can be a fair reason to dismiss an employee, it is important to follow the correct procedure. So, if you’re considering sacking someone on long-term sick leave, here’s what we’d recommend:
Follow a reasonable process and give enough time for the employee to reasonably recover
If you haven’t already gone through the steps in this article—do so. It’s also important to consider if the employee’s condition counts as a disability. If it does, you are at risk of disability discrimination. With this in mind, make sure you explore any reasonable adjustments you can make.
Discuss reasonable adjustments that could be put in place to help them. Regularly assess if these are working. Have regular meetings to give the employee to support and consider if more adjustments, or new ones, are needed.
If none of this is deemed to be working, you can consider holding a capability hearing, the outcome of which could be a dismissal. The employee has the right to appeal against this. Crucially, you must be able to clearly show that the employee cannot continue to do their job despite all adjustments you have provided.
Include the employee in all discussions and leave communication open
Once you’ve decided to dismiss the employee, you need to inform them and give them time to communicate with you. You should contact them verbally and in writing. You can do this via phone call or video call but it must be confirmed in writing.
Make sure they know who their main point of contact is, and have the details they need to communicate with them.
Provide them with their legal entitlements
You must give the employee their contractual notice and their accrued holiday pay. You should provide any other benefits specified in their employment contract. They will also have the right to appeal the decision. Make sure they’re aware of this right and have adequate time to use it.
Redundancy and long term sickness
Handling the redundancy of an employee on a period of long-term sick leave is challenging. First, you need to determine whether there is a legitimate reason for redundancy. The fact that they’ve been absent for a long time won’t be a valid reason.
Once you’ve made a decision, communication is key. You can start by issuing a letter to the employee on long term sick. Depending on the situation, this will be a risk of redundancy letter, or a redundancy consultation letter.
Continue to involve the employee in meetings and consultations throughout the process. Be as flexible as possible, giving them ample time and means to attend.
You can hold meetings in the employee’s absence if they’re unable. You should only do this when you’ve exhausted all other options.
One of the long term sick redundancy entitlements employees have is the right to a notice period. The length of this period depends on how long the individual has been with the business. You can find out more about redundancy notice periods here.
Long term sick dismissals are difficult. If you require support at any point during the process, you can speak to one of our HR experts today by calling 0145 585 8132
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