Dismissing Employees on Long-Term Sick Leave

If you have an employee on long-term sick leave, you may be concerned about their ability to return to the workplace. Likewise, you may question if they can continue their job once they return. In some cases, you may feel that they will not be capable of performing their duties. In which case, you may feel the need to dismiss them. However, doing so carries substantial risks because the law gives employees on long-term sick leave certain rights. If you fail to honour your obligations as an employer, the law may hold you liable. This article will explain certain key considerations regarding dismissing employees on long-term sick leave. 

What Is Long-term Sick Leave?

The law generally considers an employee to be on long-term sick leave if they are absent for four or more weeks due to an illness or injury. However, your employment policy may specify a different period. Regardless, where an employee is on long-term sick leave, you should be sensitive towards their illness and handle the issue compassionately. 

Before Taking Dismissal Action

As an employer, you should have a sickness absence policy that preempts the approach you take towards long-term sick leave. Specifically, the policy should outline the circumstances for dismissing employees on long-term sick leave

The general rule is that you can only dismiss employees on long-term sick leave when you conclude they can no longer do their job effectively. If you think this is the case for a particular employee, there are several considerations you should undertake before dismissal. 

Allow your employees time to recover from their sickness

Before dismissing employees on long-term sick leave, you should provide them with a reasonable time to recover. What is reasonable depends on the nature of their illness. For instance, if an employee has suffered a broken bone expected to fully heal in eight weeks, the law may conclude you acted unreasonably in dismissing them after two weeks. 

On the other hand, an employee battling cancer may be uncertain as to their recovery. You may therefore be legally entitled to dismiss them, though you may wish to consider the wider implications in doing so. 

Finally, you can still retain an employee on long-term sick leave without necessarily paying them in full. If you dismiss an employee because you wrongly assumed you had to pay them, the law may hold you to act unreasonably. Instead, they may draw statutory sick pay (SSP) until they recover. 

Consider how to support your employee.

Can you make reasonable adjustments upon an employee’s return that will enable them to do their job effectively? If so, the law is unlikely to conclude that you were entitled to dismiss them. You should therefore ensure you have considered the various ways in which you can implement reasonable adjustments in the workplace upon their return. 

This is vitally important where an employee has a disability — including where it arises as a consequence of their illness — because they are protected from unlawful discrimination. If you fail to make reasonable adjustments, they may make a claim against you in an employment tribunal. 

Ideally, you should discuss any support measures with your employee, including:

• changes to their hours or place of work;
• providing them with adjustments to their work station;
• considering making the role part-time; and
• any suggestions they have. 

By including your employee in the conversation, you will both have a sense of how viable their return is. 

Taking Dismissal Action

You can only dismiss an employee on long-term sick leave where you have reasonably concluded that they cannot return to work and perform their duties. Where an employee has worked for you for more than two years, this is called a capability dismissal. 

A capability dismissal concerns the inability of your employee to perform the role as required. If you do not carry out the dismissal process correctly, you face a claim for unfair dismissal where your employee has had continuous service for two years. When you make this decision, you should be prepared to justify your reasoning. 

In practice, you do not need to justify your decisions for dismissing an employee with less than two years of service. However, you cannot dismiss an employee due to their disability regardless of their length of service. 

In all cases, you should follow a fair and reasonable process. Ideally, you will have an employment policy that outlines these processes.

Inform your employee

Once you consider a capability dismissal for your employee, your first action should be to inform them. This can initially be done verbally but must be followed up in writing. Allow a good time for your employee to respond to you and leave contact details for the person they can discuss your potential action with. You should also provide evidence of their time absent due to sickness.

Give your employee their legal entitlements

When dismissing your employee due to their long-term sickness, there are legal entitlements they must be provided with, and you should make them aware of these.

 These are their:

• contractual notice;
• accrued holiday pay;
• benefits detailed in their employment contract; and
• the right to appeal your decision.

It is essential to ensure your employee has a good time to appeal should they wish to.

Key Takeaways

It is possible to dismiss your employee on long-term sick leave. However, you must conclude they will not be able to return to the workplace and carry on their duties effectively. For employees with more than two years of service, you should be prepared to justify the reasoning for your decision. This is because they can make a claim for unfair dismissal if you act unreasonably. When dismissing your staff, you must ensure they allow them their contractual rights, such as accrued holiday pay and their contractual notice.

If you need help with your obligations towards employees on long-term sick leave in England, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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