Can I Dismiss
Can I Dismiss Staff Off Sick Long-Term?
More people are off sick long-term than ever before, with a variety of health conditions, both physical and emotional, including stress and depression.
Most recent figures from the Office for National Statistics show another record high, with almost 2.6 million people off work because of illness.
The total numbers of inactive – people not working since the pandemic- rose to 8.69 million during the period covering April to June. 1.35 million reporting suffering from depression, anxiety or bad nerves.
But what is your situation as an employer? Can you dismiss a staff member who is off sick long-term?
For an answer we must turn to section 98 of the Employment Rights Act 1996. It states that “lack of capability, including when assessed with reference to health, is a potentially fair reason for dismissal.”
However, as the employer you must show that you have acted reasonably both in treating the long-term ill health and in the procedure adopted leading to the dismissal.
Firstly the employer must investigate the prospects of the employee being able to return to work within a reasonable time. Then there is a procedure to be carried out. A fair procedure should include:
· consultation with the employee;
· a medical investigation;
· consideration of alternative employment; and
· The fact that an employer has obtained medical evidence does not absolve them of the requirement to consult personally with the employee.
Overriding these requirements is the fact that an employer who dismisses an employee on the ground of ill health without considering any reasonable steps that they could take to enable the employee to return to work, may be liable for disability discrimination as well as unfair dismissal, if the employee is disabled within the meaning of the Equality Act 2010.
If you are contemplating dismissing an employee due to ill health (or indeed any reason) we strongly advise that you consult with a solicitor specialising in employment law.
The Graham Agency, keeping you informed.