Employee sickness is to be expected when you’re running a business.
However, if an employee is off work repeatedly or has a long-term condition that means they are unable to do their job, you may be considering terminating their contract of employment.
If you’re in this situation, you might be wondering if there’s a certain length of time that your employee needs to be off sick before you can dismiss them or how many sick days before a disciplinary can take place.
How Long Does An Employee Have To Be On Sick Leave Before Dismissal In The UK?
The truth is, this is a grey area, and there is no straight answer.
In this article, we’ll explore the laws around dismissing an employee on long-term sick leave and the things you should consider before you decide to end their employment contract.
Excessive Sick Leave Warning Letter
When To Dismiss An Employee On Long Term Sick Leave
When an employee is off work sick, it’s understandably an inconvenience.
It can also be expensive, especially if they are off work long-term with their illness.
This is a natural part of business, and every company should be prepared for staff to call in sick.
However, there is only a limited amount of time that any business can survive with staff off sick, which might lead you to wonder whether it is possible to dismiss an employee on long-term sick leave.
It is possible to fairly dismiss an employee on long-term sick leave.
However, you must be able to show that the dismissal was reasonable in the circumstances and that you followed a fair dismissal procedure, particularly if the employee has over two years’ service and, therefore, unfair dismissal rights.
So, in what circumstances are you able to dismiss an employee on sick leave, and how do you go about doing so? Read on to find out.
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Reasons For Fair Dismissal UK
The most important thing is to ensure that any potential dismissal is fair. This means that there must be a justifiable reason for the dismissal, and the correct procedure must be followed. The five legal reasons for fair dismissal in the UK are:
- Conduct – when an employee does something that is unacceptable or inappropriate.
- Capability – when an employee is unable to perform their job role.
- Redundancy – when the job role is no longer required by the business
- A legal reason – eg a taxi driver who loses their license
- Another substantial reason
In the case of long-term sickness absence, the employee may be fairly dismissed for the reason of capability.
This is because they may no longer be able to physically perform their job role.
However, to do this, you’ll first need to demonstrate that dismissal was reasonable in the circumstances and no reasonable adjustments could be made to enable the employee to return to work.
What Does The Government Say About Dismissing An Employee On Long Term Sick Leave?
UK government guidelines explain the reasons why an employee can be dismissed fairly.
These guidelines cover employees who have a persistent or long-term illness that makes it impossible to perform their job role.
This means that workers can be fairly dismissed whilst on sick leave if they will be unable to return to their job role.
However, before considering dismissal, you should carefully review the medical evidence available.
Obtaining Medical Advice
If an employee is on long-term sick leave, you should obtain a medical report from their GP or occupational health to assess whether it is likely that the employee will be able to return to work in the near future.
If the medical evidence suggests that the employee may be able to return to work, you should consider any reasonable adjustments, such as varying the employee’s hours or working conditions, to avoid the need for dismissal.
If the medical evidence indicates that the employee will not be well enough to return to work any time soon, you should arrange a meeting to discuss the medical report and whether any reasonable adjustments could help.
If the meeting outcome is that no reasonable adjustments will assist the employee’s return to work or such adjustments are not reasonable for the business to make, you can then initiate the dismissal procedure.
Potential Discrimination Claims
It’s also important to note that if the employee has a disability, as described in the Equality Act 2010, it could be deemed unlawful discrimination if the employee is dismissed as a result of their disability.
It’s not always clear whether an employee will fall within this definition of disability, so if in doubt, you should ask the GP or occupational health to make an accurate assessment as part of their report.
If the employee is disabled, you will be under a legal obligation to make reasonable adjustments, and failure to comply with this duty is a form of discrimination.
Therefore, you must implement reasonable adjustments, such as altering duties and providing support, especially any recommendations set out in the medical report, to assist a disabled employee in returning to work.
To defend disability discrimination claims, you must be able to show that dismissal is justified as a proportionate means of achieving a legitimate aim.
This defence would apply where there is no scope for the employee to return to work any time soon, even with the benefit of reasonable adjustments.
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How To Improve Employee Attendance
The best way to deal with employee illness is to prevent it from happening in the first place.
Of course, not all illness can be prevented and every employer should expect some sickness absence from workers.
However, there are some things you can do to boost employee attendance and reduce the risk of your workers going on long-term sick leave.
It’s important to note that the most common reasons for long term sick absence, according to a 2005 study, are musculoskeletal problems (particularly neck, shoulder and back problems) and mental health conditions (mainly depression).
Although it isn’t always possible to prevent these issues from occurring, there are things that you can do to minimise the chance of your workforce experiencing these issues.
For example, back and neck pain can be caused by sitting at a desk for too long, or in a sub-optimal position.
By conducting regular workplace desk assessments, you can ensure that your workers are sat in the most ergonomic position possible, reducing the risk of musculoskeletal issues later down the line.
Ensuring that your employees have a good work-life balance, as well as minimising stress in the workplace, is the best way to reduce the likelihood of your employees experiencing mental health problems.
This is because work-related stress can aggravate an existing mental health problem, making it more difficult for your employee to manage.
By ensuring that workload is carefully managed to avoid employees feeling overwhelmed, you can help to minimise the risks of stress-induced mental health problems.
If an employee is on sick leave, there may be things that you can do to support them in returning to the workplace, reducing the duration of their absence.
This could include altering their work pattern, including changing their shifts or shortening their hours, or enabling them to work remotely.
You should also examine whether any aspect of the job role is causing their illness, as this could result in a relapse if the employee does return to the role.
Sickness Absence Policy
Every business should have a sickness absence policy that sets out a formal process that will be followed when an employee is off work due to illness.
This policy should set out exactly what is expected from both the employer and employee if an employee needs to take time off work due to illness.
The sickness absence policy should include:
- How absence should be reported, including who the employee should contact and how and when they should be contacted.
- When the employee needs to obtain a sick note from a doctor.
- How and when the employee and employer will keep in touch.
- How return to work discussions will be held, including when and with who.
- How much the employee will be paid during their sick leave, and how long they will be paid for.
- How absence is tracked by the employer and when absence will be reviewed.
- The point at which a sickness absence becomes long-term.
- Your approach in considering dismissal of an employee on long-term sick leave.
By having these points set out in a formal sickness absence policy, you can ensure that employees, managers and HR staff are on the same page when it comes to dealing with sickness absence.
This also helps to ensure that every employee is treated equally, meaning that there is less chance of complaints later down the line.
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Disciplinary Process For Sick Absence
If you are considering dismissing an employee on long-term sick leave, you’ll need to hold a capability hearing first.
Although they are off sick, the employee may still be capable of attending a hearing. It’s important that you try to make any reasonable adjustments possible to facilitate this. Reasonable adjustments could mean arranging to visit the employee in their own home or offering to meet in a neutral location.
You may also decide it is appropriate to conduct the hearing remotely.
You should also advise the employee in advance that dismissal is a potential outcome if no adjustments can be made to facilitate their return to work.
As this is a formal hearing, the employee should be given the right to be accompanied by a trade union representative or work colleague.
In some circumstances, you may be able to proceed with the hearing in the absence of your employee, if they are unable to attend.
However, it is best practice to rearrange the meeting at least once to make sure that the process is fair.
Whether or not the employee attends the hearing, you should ensure that it is fully documented, as this could be used as evidence at an employment tribunal later down the line if required.
Ill Health Retirement
If an employee is under 55 and has a long-term health condition that means they will not be able to return to work, they may be able to claim ill health retirement.
This is also known as being ‘medically retired’.
Criteria for ill-health retirement are set by the pension scheme, including which conditions may be eligible for drawing a pension early.
If ill-health retirement is a possibility, the employee should discuss the option with the HR department to establish whether it can be claimed and begin proceedings.
Managing An Employee With A Terminal Illness
Employees with a terminal illness are completely different to employees who are on long term sick leave, and this needs to be handled sensitively by both managers and the HR department.
If an employee discloses that they have a terminal illness, the business should work to support the employee in their plans.
They may decide to continue working for as long as possible, or they may prefer to end their role quickly. The most important thing is that you listen to their wishes and support their plans as far as possible.
When the employee does leave their role, it’s important to investigate whether their pension scheme allows for a lump sum payment to be made. This could help to support the employee once they decide to finish work.
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Related Questions
How Long Can An Employee Be On Long-Term Sick Leave?
An employee is usually considered to be on long-term sick leave after four weeks of sick absence.
There is no maximum period that an employee can be on long-term sick leave for, but you may consider dismissal if the employee will not be able to return to the job due to ill health after a reasonable length of time has been allowed for recovery.
Do Employees Have To Tell You Why They Are Off Sick?
There is no legal obligation for an employee to disclose the reason for sickness absence to their employer, although they are legally required to submit a fit note from a doctor after seven consecutive days of absence.
Can I Sack An Employee For Being Off Sick?
If an employee’s long-term illness makes it impossible for them to perform their job role, you can consider dismissal on the ground of ill-health capability.
However, you should base your decision on medical evidence and explore whether any adjustments can be made to enable the employee to return to work, to protect against unfair dismissal and discrimination claims.
Deciding To Dismiss An Employee On Sick Leave
It’s never an easy decision to dismiss an employee, especially if it’s due to ill health. Nevertheless, if an employee is no longer able to perform the duties of their job role, sometimes dismissal may be the only option.
The most important thing is to ensure that you have allowed sufficient time for the employee to make a recovery and offered any reasonable adjustments that could be made to enable the worker to return to their role.
If dismissal remains the only option, it’s important to ensure that you follow the correct procedure as set out in your company’s sickness absence policy, reducing the chances of a claim being made at an employment tribunal.
If you need advice on managing long-term sickness in your organisation or dismissing an employee on long-term sick leave, we’re here to help.
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