- Posted Tuesday February 11, 2014
It’s a common thought that Employers are expected to keep a sick employee’s job open indefinitely, however this is not the case - although it is necessary to follow a fair procedure to manage a long term absence situation. If you proceed towards a dismissal you will potentially have to show that the dismissal was justified and fair after properly exploring all the options open to you.
What the Equality Act 2010 says
Since the introduction of the Equality Act 2010, it is now easier for employees to show that they are disabled, and are therefore protected under legislation. This does not however mean that you are unable to take action. A person has a disability if he or she has a physical or mental impairment which has a substantial and long–term adverse effect on that person’s ability to carry out normal day-to-day activities, typically lasting, or can be expected to last 12 months or more.
Under the Equality Act 2010, you will have to demonstrate that you have taken all appropriate steps to facilitate a return to work – including looking at alternative duties, hours and alternative roles where possible.
Important: You must make sure that you keep records of any discussions you have with employees about reasonable adjustments and why any are discounted – for example, because they are not practical for business reasons – and what alternatives were considered.
What to consider when terminating employment on the grounds of ill health.
An employment tribunal will consider if you have followed an appropriate procedure and would suggest you do the following before considering dismissal on grounds of ill health:
- Ensure the absence has been dealt with in accordance with your published absence/capability policy or procedure.
- Consult with the employee and keep in touch regarding their condition and their prospects of a return to work.
- With the staff member’s permission, commission a report from a medical practitioner.
- In conjunction with medical guidance, formally review the role and the individual’s capability and decide whether adjustments can be made (this includes contract adjustments) and consider whether there is another job available in the practice which the staff member could do. Also consider whether the job can be done part-time with recruitment if necessary. A tribunal will look at if there have been any offers of alternative employment.
- Carry out a risk assessment based on the information you have, and involve the staff member. There is a risk assessment toolkit in the Toolkits section on the FPM website.
- Assess the information available and determine whether the employee’s return to work can be facilitated.
- If a partial return to work can be considered, develop an “induction” or phased–in process.
- Keep in contact after a return.
Alternatively, after following the guidance above, in the event that no return to work date is foreseeable or suitable alternative employment cannot be found or reasonable adjustments or modifications to the workplace are not practical or possible, termination on grounds of ill health may result.
What to consider when referring an employee to occupational health
Before considering termination on the grounds of ill health, we would always advise commissioning a report from your occupational health provider. The report you get from the occupational health specialist will then help you determine:
- If the employee can return to work;
- What work / hours etc can be carried out when they do return to work;
- If there are any adjustments that can be made to the individual’s role / hours on their return to work to help support them;
- In conjunction with the medical guidance you should formally review the role and the individual’s capability and decide whether adjustments can be made.
- Depending on the report you receive it may even be useful for you to carry out a risk assessment in which you should involve the staff member. (There is a risk assessment toolkit in the Toolkits section on the FPM website).
We have a template letter on our website that you can use to request a medical report on our website, but generally speaking, you should be asking questions of the occupational health specialist along the following lines:
- If the reason for ill-health is permanent / fluctuating / progressive / resolvable
- If the individual is currently fit to carry out role at present
- If a gradual / phased return to work is recommended – if so what arrangements would be appropriate/and how long for
- Adjustments that can be made to the individuals role / hours etc (temporarily or permanently) to help her return to work
- Impact this has on individual’s ability to carry out role
- What further action can be taken by the practice to help support the individual
- If ill health retirement is likely
- If a further OH referral would be needed
- Is the individual likely to return to work and if so when is this likely to be
- In addition to this you should also detail; the reason of absence, the individual’s duties (including the nature of the work environment and potential demands on the individual); hours / pattern of work; actions taken so far in relation to the absence.
Bear in mind that the employee will see the report and you will be discussing the contents with them so bear in mind any language you use in the referral letter.
The report you receive from occupation health will then help you determine if the individual is capably of fulfilling the role and when a return to work can be expected.
Please note the above guidance is of a general nature. It is important that practices ensure policy guidelines and contractual obligations are followed.
In addition to the above, FPM members can obtain further information via the FPM website. Alternatively members can also email specific questions about employment issues to firstname.lastname@example.org where your question will be treated in confidence and will normally be answered (by email) within 2 working days of submission.
Information from ACAS, Personnel Today and the HSE’s website has been used within this article. Last updated December 2017.