This article outlines an employer’s obligations under current employment protection legislation. Under this legislation, employees who meet various qualifying conditions have the right not to be unfairly dismissed. Employees who have been unfairly dismissed are able to seek a remedy by complaining to an employment tribunal.
Net Lawman provides a number of other information articles on dismissal. We recommend you read them first and then read this article on dismissal for pregnancy or maternity if it applies to you. The primary articles can be accessed here.
Dismissal in connection with illness
The inability of an employee to do a job, for whatever reason, is a valid reason for dismissal. However, where an employee becomes physically or mentally unable to do his or her job due to illness, or an employee who is persistently absent from work because of illness, clearly requires further consideration.
How can my small business provide for a sick, absent employee?
Tribunals recognise that businesses, especially smaller ones, often lack the resources to 'carry' the ill employee, and they understand that a time comes when the employer can no longer be expected to keep open the post of an employee who is off sick. All cases are decided on the individual circumstances, so although there are no set rules in this area, if your business is relatively small, this argument provides a solid starting point.
What must I do to help my situation?
The tribunal will asses whether you, the employer, have been fair and reasonable given the circumstances. They will expect you to have discussed the position with the employee concerned, enough so that you are absolutely sure of the facts. For example, do you know about the employee's state of health and whether he or she is incapable of doing his or her job, or likely to be persistently absent in the future? To ascertain this information, you may need to contact a health practitioner (with the employee’s permission of course). Net Lawman have a number of medical letters which you can download and send to the relevant health practitioner whilst complying with the law. Links are at the end of this article.
Alternatives
If there is less demanding work available which the sick employee would be capable of doing, you should offer it to the employee. You could also consider part-time work or flexi work, explained further in the following paragraph.
Obligations under the Disability Discrimination Act 1995
Note also, that the Disability Discrimination Act 1995 makes it unlawful for employers with fifteen or more employees to discriminate against current or prospective employees with disabilities. Don’t be caught out – the definition of ‘disability’ is wide and covers many people with illnesses which wouldn’t usually be thought of in society as a “disability”. The definition is: "a physical or mental impairment which has a substantial and long-term adverse effect on (a person's) ability to carry out normal day-to-day activities". Under the 1995 Act, an employer who dismisses a disabled person, or gives them compulsory early retirement, for a reason relating to the disability, would need to be able to justify this with a substantial and relevant reason. An employer cannot justify such treatment if the reason could be removed or made less than substantial, by a reasonable adjustment. For some employers and employees, reasonable adjustments might include part-time working, some additional sick leave, redeployment to other duties, or the transfer of minor duties to another employee.
If by chance you find some error of law or fact in any Net Lawman information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes:
Do not provide a complete or authoritative statement of the law;
Do not constitute legal advice by Net Lawman;
Do not create a contractual relationship;
Do not form part of any other advice, whether paid or free.
