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.
So, how long can you 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, as well as the things you should consider before you decide to end their contract of employment.
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 dismiss an employee on long term sick leave. However, you’ll need to ensure that you follow your company procedure, as well as considering any reasonable adjustments that could help the employee to return to work, before you can consider dismissing them.
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.
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 sick absence, the employee may be fairly dismissed under 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 you’ve tried to make reasonable adjustments 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 an employee can be dismissed, the employer will need to attempt to make any reasonable adjustments to enable the worker to return to their role. They’ll also need to allow reasonable time for the employee to make a recovery and return back to work. Dismissal should always be a last resort if there is no other option for the business and employee.
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.
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 sick 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.
Disciplinary Hearing For Sick Absence
If you are considering dismissing an employee on long term sick leave, you’ll first need to hold a disciplinary hearing. Although they are off sick, the employee may still be capable of attending a disciplinary 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.
In some circumstances, you may be able to proceed with the disciplinary hearing in the absence of your employee, if they are unable to attend.
Whether or not the employee attends the disciplinary 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.
Dismissing An Employee On Long Term Sick Leave
It’s never an easy decision to dismiss an employee, but sometimes it’s the only option. After all, if there’s no chance that an employee will ever be able to return to their role, you need to free up funds to find a replacement.
However, before you decide to dismiss an employee, you must ensure that it is fair dismissal. This means that you’ll need to consider whether you have given the worker sufficient time to recover from their illness and considered any reasonable adjustments that could be made to facilitate their return.
Once you decide to dismiss the employee, you’ll need to follow the procedure set out in the employee handbook, including the required notice period. This will help to avoid potential unfair dismissal claims.
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.
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 an employer 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 I Have To Tell My Employer Why I Am Off Sick?
There is no legal obligation for an employee to disclose the reason for sickness absence to their employer, although a sick note is legally required from a doctor after seven consecutive days of absence. However, an employer will be in a better position to offer support and assistance to the employee if the reason for absence can be disclosed.
Can I Be Sacked For Being Off Sick UK?
Before taking action against an employee who is on sick leave, the employer should allow reasonable time for recovery and offer reasonable adjustments to facilitate your return to work. However, if your long term illness makes it impossible for you to perform your job role, your employer may consider dismissal.
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.