How to avoid claims by an employee on long term sick leave

Managing an employee on a long term sick leave is essential, but what happens if you need to dismiss them?

If you have an employee on long term sick leave, and the need arises to dismiss them, there are clear considerations and steps which should be taken to avoid a successful claim for unfair dismissal, or discrimination on the grounds of disability, being made.

When an employee has a prolonged absence due to sickness, it is important a fair procedure is followed and the decision to dismiss is reasonable, usually following additional investigations into the employee’s health condition.

A brief outline of a fair procedure is set out below; should you be faced with an employee on long term sick then you should seek legal advice as to the best way to proceed.

1. Hold a meeting to discuss the employee’s sickness absence and clarify their situation.
2. Obtain medical evidence
   Medical evidence will help clarify the diagnosis and any proposed time frame for a return to work. Such evidence may be obtained either through a referral to an occupational health specialist or through the new free Government Fit for Work Service. Both referrals will require further consideration, an employee’s contract or the employer’s policies may comment upon the use of an occupational health therapist and these policies will need to be considered. Do your contracts of employment allow you to obtain your own medical evidence on an employee? There are also requirements that must be met before the Fit for Work service can be used and these should be reviewed before progressing.
3. Hold a further meeting with the employee to discuss the medical evidence that has been obtained. This meeting should also be used to discuss any reasonable adjustments to the employee’s role that could be made.
   Employers may also wish to consider any suitable alternative employment. If the employee is deemed to have a disability then the employer may be under a duty to make reasonable adjustments and offer any available suitable alternative employment. This step is critical to a fair procedure.
4. If there are no alternative roles or adjustments that can be made and you decide to dismiss, a further meeting should be held with the employee where they are informed of this.
5. This decision should be confirmed in writing and the correspondence should also outline the relevant appeals procedure.

Whilst this is a difficult area employers should not simply leave the matter and hope it goes away, it won’t and they may then find themselves spending more time and money trying to retrospectively rectify matters. If faced with such a situation employers should obtain legal advice or in the first instance review ACAS guidance on the matter.