Physical and mental ill health can sadly result in employees being away from the workplace for long periods of time and, ultimately, unable to return to work for the foreseeable future. In a worst-case scenario this might lead to the employee being dismissed on capability grounds (capability being one of the five potentially fair reasons for dismissal – the others being conduct, redundancy, illegality and some other substantial reason). Care should be taken in order to ensure that the dismissal is carried out fairly, and I would always advocate sensitively.
Unless there is a catastrophic illness or accident, employers will need to undertake a consultation process with ill employees and ensure that they have up to date facts on the employee’s diagnosis and prognosis, often with the help of an occupational health specialist. Employers must also be able to demonstrate that alternatives to dismissal have been considered.
Disability
By the time the employer is considering dismissal on health grounds, it’s likely the employee will be deemed to be disabled under the Equality Act 2010 because they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. By ‘substantial’ I mean more than minor or trivial and ‘longterm’ means 12 months or more.
Disability brings two key facts into focus. Firstly, remember that disability is a protected characteristic and therefore brings with it the potential for a discrimination claim if the employee is not treated properly. Secondly, part of being treated properly is the obligation to make reasonable adjustments in order for the employee to continue in their role where possible. You can find out more about reasonable adjustments from gov.uk here. Examples include allowing an employee the opportunity to return to work on a phased part-time basis, or working elsewhere if, for example, they required wheelchair access. Having said that, for some employees, no amount of reasonable adjustments will facilitate a return to work, however employers need to show they have considered viable options and discussed these with the employee.
Regular communication
For a dismissal to be fair the employer must meet regularly with the employee and make it clear at what point dismissal may be considered. As already stated, discussions should also include a look at what steps the employer could take to get the employee back to work as well as any adjustments that may be necessary including an alternative role.
What would an employment tribual consider?
In determining whether a dismissal was fair (and here I’m talking about an unfair dismissal claim, not the discrimination aspect) an employment tribunal would consider:
- Did the employer carry out a reasonable investigation about the employee’s condition, and whether it was likely that the employee could return to work?
- Did the employer consult the employee before making the decision to dismiss?
- Did the employer make reasonable efforts to explore other options, such as flexible working, workplace adaptations or an alternative role?
Considerations
Some employers have a specific capability procedure, if so that should be followed to ensure a fair dismissal.
If an employer has arrangements with an insurer to continue pay whilst the employee cannot work that should be explored before dismissal takes place. Eligibility for such payments usuallly require the employee to remain in employment and be paid by the employer with the insurer reimbursing the employer. It is good practice for the employer to inform the insurer in good time that a claim is likley to be made once the eligibility criteria has been reached.
Ill health dismissal will not afford the employer the option of summary dismissal, as would be the case under dismissal on the grounds of gross misconduct, and so the employee will be entitled to receive proper notice and notice pay.
Finally, an employer should ensure that documentation is created and maintained that shows a fair process was undertaken.