When can employers dismiss workers in cases of long term sickness absences?
When can employers dismiss workers in cases of long-term sickness absences?
Sometimes an employee may have to stop working because of long-term ill health. Employers might come to the conclusion that they want to dismiss the ill employee but this can only be done under a fair procedure which needs to meet the following requirements. If you have been off long term sick what considerations does your employer have to have before they decide to dismiss you?
- The length of the absence:
It is open to a tribunal to find that it was unreasonable of the employer not to wait a few months longer so that it could obtain its own medical evidence. In O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145 the Court of Appeal decided that even after 14 months of absence of the employee for illness, the emphasis shall not put on the length of the period but on the evidence obtained by the employer regarding the health conditions of the employee. If things change in your health it may become necessary for employer to wait longer.
- Duties Incumbent on the Employer:
In Monmouthshire County Council v Harris UKEAT/0332/14/DA, confirming BS v Dundee City Council  IRLR 131 CS, the employer should take steps to obtain proper medical advice (i.e. disclosure of medical records from the GP) and discover the medical conditions of the employee and his or her prognosis such as arranging an occupational health assessment. The employee is required to collaborate in such situations. Those two cases also mention other factors that will be taken into account by the courts:
- Consulting with the employee and ascertaining their wishes;
- Considering the availability of alternative employment, (i.e. relocation)
- The availability of temporary cover (including its cost);
- The fact that the employee has exhausted his sick pay;
- The administrative costs that might be incurred by keeping the employee on the books; and
- The size of the organisation.
If the employer has enough evidence that the employee is suffering from a disability, the employer is under a duty to make reasonable adjustments. There is an important practical piece of advice, employees should always express a desire to continue work and expresses their fitness to work if they feel able to. Without this the issue of reasonable adjustments does not arise.
When does the duty arise? The duty to make reasonable adjustments relates to what steps the employer can take to enable the disabled employee to return to active duty. In NCH Scotland v McHugh UKEATS/0010/06, the EAT decided that adjustments should be made in advance, before the illness if signs were shown, or failing to do so, when there are some signs that the employee will be able to return. Such arrangements must not be illusory and must allow the employee to work again. Hence the duty is not triggered and will not arise if the employee is not fit to work Doran v Department for Work and Pensions UKEAT/0017/14. Moverover, medical evidence on unfitness to work prevails over the employee stating that he or she is fit to work, Brown v Commissioners for Her Majesty’s Revenue and Customs and others ET/2510511/09.
Examples of adjustments that might be reasonable for an employer to make:
- Making adjustments to premises;
- Providing information in accessible formats;
- Allocating some of a disabled person’s duties to another worker;
- Transferring a disabled worker to fill an existing vacancy;
- Altering a disabled worker’s hours of working or training;
- Assigning a disabled worker to a different place of work or training, or arranging home working;
- Allowing a disabled worker to be absent during working or training hours for rehabilitation, assessment or treatment;
- Acquiring or modifying equipment;
- Providing supervision or other support;
- Allowing a disabled worker to take a period of disability leave;
- Adjusting redundancy selection criteria; and
- Modifying performance-related pay arrangements.
Unfair dismissal and discrimination arising from disability:
Consequently, procedural failings such as inadequate consultation, inadequate warning of the risk of dismissal, not considering the updated medical reports and failure to propose adjustments can be the basis for a claim of unfair dismissal or for a “discrimination arising from disability” claim.
- “Discrimination arising from disability“- Occurs where the employer treats the employee unfavourably because of something arising in consequence of the employee’s disability and where the employer cannot show that the treatment is objectively justified as a proportionate means of achieving a legitimate aim.
In cases of long term illnesses, if an employer has failed to make a reasonable adjustment which would have prevented or minimised an employee’s unfavourable treatment, it will be very difficult for it to show that the treatment was objectively justified for the purposes of a discrimination arising from disability claim.
- Unfair dismissal– It is also worth noting that in assessing the fairness of the dismissal, the courts will take into account the severity of the impact on the employer due to the continuing absence of the employee, O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145.
If you are experiencing long term illness and are worried it may lead to dismissal, call us for free advice and how to approach the situation. 020 8579 1345.