Employers cannot dismiss if their employee is genuinely ill.
Many employers are nervous of dismissing staff who are genuinely ill, even if they have been off sick for a very long time. This can be for a number of reasons – compassion for the individual’s situation, culture of the organisation or fear of the legal and financial consequences. There is a commonly held belief that you can’t sack someone who is genuinely ill. This is a myth and in reality, provided certain safeguards are in place, genuinely ill employees can be dismissed.
The first question to ask is ‘what is the reason for dismissal’? If it is a genuine redundancy situation or there’s been gross misconduct, for example, an employer may need to adapt its procedure to accommodate the sick employee, but can go ahead and dismiss. Employees on long term sick don’t get ‘special protection’ in those circumstances.
You have to be a little more careful if the reason for dismissal is linked to the ill-health, eg, because the employee’s absence level is unacceptable. In that case, the first thing to check is whether there is an income protection or permanent health insurance (“PHI”) scheme in place. If there is, the employee should be encouraged to make a claim on the policy – dismissing them for capability / health reasons and depriving them of the right to make a claim could be very costly.
Disability discrimination is always a risk where a dismissal may arise due to someone’s disability related absence or illness. Dismissal for a reason arising from a disability may still be justifiable where there are substantive business reasons but the procedure you follow and the factors you consider will be particularly placed under scrutiny. Also, there is likely to be a duty to make reasonable adjustments to help overcome disadvantages in the workplace where these arise due to a disability, including steps to facilitate a return to work. Therefore, consideration should be given to making reasonable adjustments to support the employee, including the possibility of a transfer to another role.
Before dismissing for this capability/health reasons, you will need to get medical advice as to when and if the employee can return, and whether any adjustments could be made to enable them to do so. Occupational health referrals can, if done properly, be very useful to advise and support on next steps and/or support whether there is sufficient grounds for considering dismissal.
As with any dismissal, a fair procedure will also need to be followed and we recommend legal advice be sought before dismissal.
For information on any of the above or our IMhrplus service, please contact:
For and on behalf of Irwin Mitchell LLP
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