Handling an employee who has been on long-term sick is a sensitive issue that must be handled with care.

It could be that the illness is serious and involves an operation and recovery time, or it could be a mental health problem.

On the other hand, you may suspect that an employee is purposely prolonging an illness in order to delay returning to work.

In both scenarios, the employee’s absence can put a strain on the daily running of the business.

Dismissing someone on the grounds of ill-health capability is a difficult decision to make.

Throughout discussions with the employee, they should be aware at what point dismissal becomes an option.

1) Investigate

Normally, an investigation will include monitoring the duration of the employee’s sickness absence and having a discussion with them to determine how long they estimate they will be off sick for.

Obtaining a medical report from either the employee’s GP or from an occupational health specialist will be another key consideration.

A medical report is essential to ascertain the seriousness of the employee’s condition.

It is important to ask the medical examiner as many questions as possible so they can provide a thorough and detailed report.

To do this, you will need to obtain the employee’s consent in order to contact their GP.

If an employee does not consent to you contacting their GP or another health professional, then you may be able to make decisions about their future employment based on the information you already have, as well as making reasonable assumptions about their ill health.

2) Hold A Capability Meeting With The Employee

Having a meeting with the employee is necessary to discuss the findings of the medical report, and to see how the employee is currently feeling.

It will also give you an insight as to when the employee expects they will return to work.

You will also be able to discuss any reasonable adjustments that could be made for the employee, to help facilitate their return to work.

3) Are There Any Reasonable Adjustments That Can Be Made?

If the reason for the employee’s absence could be classed as a disability under the Equality Act 2010, then as an employer, you have a legal duty to consider what reasonable adjustments could be made for that employee.

What adjustments can be made will depend upon the employee.

For some, a phased return to work may be best, or spreading some of their duties out across other members of staff may also be helpful for them.

If applicable, you may have to consider an alternative job role for the employee upon their return to work.

This may occur in situations where an employee’s previous role was quite physically demanding, but due to their illness, an office-based role may be more suitable for them.

If after all considerations have been made, and it does not appear likely that the employee will return to work, nor are there any reasonable adjustments that can be made, then you may have to consider dismissing the employee.

If dismissal does appear to be the likely option, then it is essential that you follow a fair process as detailed above.

If an employee brings a claim, it will be essential to show the Tribunal that the process followed was procedurally fair.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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