Can an employer dismiss an employee due to long term sickness?

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 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.

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Peter Scott 23/11/2018

Good Afternoon Can you please help me with a question on first aiders at work? I look after 2 GP heath centres and need to know if I have to inform the practice manager that they need trained First Aiders at work or can we call upon the doctors , health visitors and midwifes on site to carry out first aid duty if a member of staff or even a patient becomes ill or injured on site? e have between 5-10 GP's on site very day and a combination of other midwifes and health visitors on site daily. I look forward to hearing from you with any assistance Kind Regards Peter Scott

Mary 05/06/2017

Hi I have worked for a company for approx 16 yrs and have been on long term sick for nearly four months. Can they terminate my contract after six months? Would I be paid out anything? Thanks in advance

sam 05/06/2017

my condition is, my employee called me on the 04 May2017 and reported that she is sick and does not think she can face the cold with her condition and she is not coming back to work after she was absent from work since the 28 April 2017. on the 01 June she came back with the doctors note booked off for two days and another declaration that states she is not fit to work, the declaration was hand written and signed by a doctor. the employee is not willing to come back to work, what should I do, terminate her service due to ill health or terminate as a result of our telephonic condensation that she resigns.

Mrs sa jeffrey 20/02/2017

Have worked for this employer for 42 years .had a fall at work March 2015 .broke my left shoulder,humerus, and femur ,I have rhumatoid arthritis and osteoparosis,my bones are not healing ,I had 6mths sick pay .am I entitled to my holiday pay .can they dismiss me from my job. Thankyou

Charles 18/02/2017

I was working for a company from June 2004-January 2005. The contract changed from an agency-paid temporary contract to a permanent contract with the company itself. I had a spinal cord injury a two or three days into the permanent contract. The injury resulted from both a degenerative disc condition which had never been previously diagnosed, and from the heavy and repeated lifting, twisting (in order to rotate a large filing cabinet several times a day) and prolonged sitting that the job required. I was forced to leave the job and undergo emergency surgery. The company did not contact me to discuss either my diagnosis or possible return to work. I attempted to pursue compensation, but following a medical examination arranged by the company's insurers, my lawyer's lack of confidence led me to drop the claim. What I'd like to know is: did the company break any laws in terms of procedure? What was the state of my employment contract following the injury? Was the company free to abandon my contract with them because of my health? Do I have grounds for complaint and some form of financial compensation?

Marie 03/02/2017

I have worked for a company for over 10 yrs and had an accident at work . I am being paid i.i.p and got a pay out from the company . I am unable to return to work after 4yrs as i have a permanent injury . Am i entitled to any redundancy money ? Thank you .........

Mary storrer 22/11/2016

I had a fall in may this year fractured my upper arm .been back to hospital 16 november he told me its not mened properly .said they could rebreak my arm but its not likely to improve it ,so they said about keyhole surgery were they will shave some bone away to help me .but im going to try cortisone injection first .so hosiptal have given me 3 months sicknote .but my employer wants to see me in work ive kept them informed about everything how long can i get sickpay for please ive been told your allowed a year on sick

Tracy 05/10/2016

Dear sir madam, please can you tell me if I am entitled to any money after working for a company for over ten yrs and have been on long term sick since September 2015, I worked 25hrs per week, I have seen their occupational health team and I think they are looking to dismiss me any time now, am I due any holiday pay, and any other monies, Many thanks Tracy

Allen Nolan 24/09/2016

Hi I've worked for a company for 10 years . I got injured at work through no fault of my own .this was 4 year ago and I've had time out of work over the 4 yrs .I'm out at the moment & have been since April I've just been told they are going to dismiss me next week with no sort of payment .as in redundancy or medical discharge or severance pay .by the way I have a bulging disc etc can they do this ????

Emma 20/08/2015

Hello. Have recently started a new job and was there all of a week when I collapsed at work. It has been over a month and the doctors are still trying to figure out what is wrong with me. I am constantly dizzy and light headed which also brings with it nausea and am having heart palpitations and head pressure and migraines. I haven't even signed my contract yet. I need advice on whether they can and might dismiss me, as I have already had a month off and we still have no clue what is wrong. Should I hand in my notice and look for another job once I know what is wrong with me? I do currently work in retail and this requires long periods of time standing, which I cannot do, and one of my doctors has sad if it turns out I have one of the certain conditions anyway, I will no longer be able to work there anyway. Any advice would be fantastic, thank you.

Raj 28/07/2015

Hi Sam, Can you tell me how accrued holidays for an employee on long term sick can be paid. The fact they are on sick and produced a medical certificate, are they also able to get paid sick as well as annual leaves. What if the company has a policy of no holiday can be carried forward.

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