In my blog on 10th September I talked about employees’ entitlement to pay whilst off work sick. Many employees, particularly those who have been on long term sick leave, worry about whether they may be subject to a sickness absence dismissal as a result of their ill-health.
Introduction
Despite being unwell and having justification for your absence from work, you can be subject to a sickness absence dismissal by your employer. However your employer should tread carefully before dismissing you without proper investigation into your situation and consultation with you. If you are dismissed for sickness absence without a fair and proper process then you may have a claim for unfair dismissal, assuming you meet the qualifying period of having been employed for 2 years’ or more. Even if you do not meet the qualifying period for an unfair dismissal claim, but you have an illness or condition which constitutes a disability for the purposes of the Equality Act, you may have a claim for disability discrimination.
Investigation
Your employer should investigate the nature, extent and likely duration of your illness. This is likely to involve asking you for information, obtaining a medical report or referring you to your employer’s occupational health therapists or medical experts. If your absence is stress-related you might be referred to counselling services, if the employer offers these.
This will help to inform your employer about the work you are able to do once you return and any adjustments to working arrangements that could be made to help you.
If your employer can show that it has taken reasonable steps to assess your health and the future prognosis it is more likely that they will be considered to have acted reasonably if they ultimately decide to dismiss you. Employers are unlikely to go against medical opinion so that if medical opinion is that you are fit to return to work but your employer decides to dismiss you anyway, it is more likely that their decision will be considered unreasonable. However, employment tribunals will assess the reasonableness of your employer’s decision in all the circumstances.
If you have absences that are intermittent and short term, your employer should investigate any underlying cause. They may follow a capability or disciplinary procedure offering you assistance for improving your attendance and giving warnings where appropriate.
Disability
As stated above, you may have a disability for the purposes of the Equality Act. Your employer may seek medical evidence to help identify this. If you do have a disability your employer has a duty to consider whether any adjustments could help you return to work. This might be a change to your duties or working conditions.
Another reasonable adjustment might be to amend the employer’s absence management policy so that you are not placed at a substantial disadvantage as compared to a non-disabled employee.
For example this could be extending the time in which disciplinary action can be taken under its policy.
Are there any alternatives to a sickness absence dismissal?
Your employer should consider all of your circumstances and what action has been taken previously with employees in similar circumstances.
There may be another role within the organisation that would avoid dismissal.
If you are on long-term sick and unlikely to return in the foreseeable future, your employer might be able to claim under the terms of a private health insurance policy or consider ill health retirement for you.
Facing a sickness absence dismissal?
If your employer is contemplating your dismissal they should meet with you to discuss possible outcomes and give you the opportunity to present your case against dismissal. Any decision should be confirmed in writing. If you are dismissed, you should be given the right of appeal. An appeal meeting will be held and the decision again confirmed to you in writing.
How can Lincs Law Employment Solicitors help?
The above is a general overview only. For specific advice on your own situation please contact us on 01522 440512 for a no obligation, free consultation or visit our website for more information about disability discrimination at https://lincslaw.co.uk/services/employees/workplace-problems/disability-discrimination/
Kathryn Bolton
Specialist Employment Solicitor
Lincs Law Employment Solicitors
Tags: dismissed for absence sickness absence sickness absence dismissal sickness absence from work unfair dismissal for sickness