Can I terminate an employee on long term sick leave?

As an employer, you must end employment ‘fairly’ when it relates to long term sickness.

An employer can terminate any employee’s employment at any time – as in, employers are able to terminate employees’ employment whenever they want to – but the better question is whether you can fairly terminate their employment in the circumstances, whilst also avoiding acting in a discriminatory manner to boot.

Where an employee has been off sick for more than four weeks, before taking action they can’t claw back from, employers should investigate why the employee is off sick, what caused their absence, whether they have a “disability” under the Equality Act, and also consider what their duties are in relation to the employee.

How do you manage someone on long term sickness absence?

Briefly, employers should:

• Meet with or speak to the employee to get information about their condition, and flush out whether they feel that their condition has been caused or worsened because of something at work – are you looking at a potential grievance about, say, bullying that’s caused stress and anxiety?
• Get medical reports and/or Occupational Health reports on the employee’s condition, prognosis, and ability to work (with or without any adjustments).
• Follow medical advice including making any reasonable adjustments if the employee is or may be “disabled” under the Equality Act.
• Keep in touch with the employee during their absence, as agreed, and ensure you continue to get up to date information about their condition.
• Alongside keeping in touch with the employee, keep reviewing whether you can or should make reasonable adjustments to facilitate their return – this may be difficult if there’s no anticipated return date, but if the employee is “disabled” under the Equality Act, you’ll have a duty to make reasonable adjustments (the appropriate adjustments will depend on the particular circumstances, so it’s hard to generalise).
• Consider whether it’s necessary to look at terminating the employee’s employment – and get legal advice before taking any steps towards doing so.

Can employers contact employees while they are on medical leave?

The first thing is to check your sickness absence policy, as it will often refer to keeping in touch with employees while they are off sick. Depending on the reason for absence, it might be encouraged to keep in touch, or it might be inappropriate. For instance, some employees may welcome regular updates from work, but others might feel overwhelmed.

The best thing is to refer to the policy and also get the employee’s agreement to the proposed level and type of contact: are they happy to be called, or would they prefer texts/WhatsApps that they can reply to when they’re ready?

Does an employee have to tell you why they are off sick?

Where an employee is on long term sickness absence, you should be requiring them to produce Fit Notes from their GP covering their entire period of absence.  This is so you can process and pay Statutory Sick Pay (whether or not you pay company sick pay in addition to SSP). The Fit Notes will give a reason why the employee isn’t fit for work.  Sometimes, Fit Notes may say they are fit for work with certain adjustments, but here we’re talking about employees who are off sick for a prolonged period because they are completely unfit to work.

So, Fit Notes will give the reason why the employee is off sick. If the employee doesn’t submit Fit Notes from their GP, you should reiterate that this is a requirement under the long term absence policy (assuming of course you have one, and it is).  Ultimately, it may be necessary to tell the employee that you won’t be able to pay them SSP and/or company sick pay (if any) and/or take disciplinary action if they don’t submit Fit Notes, but that’s a topic for another blog.

What checks do Occupational Health do?

Occupational Health physicians will conduct a range of basic physical checks like height, weight and blood pressure.  They will also ask questions around the employee’s mental health condition, stress/anxiety levels, and how things are at work from the employee’s perspective.

There will usually be some particular questions you’ll want Occ Health to cover for an employee on long term sickness absence.  We can help put together a list of appropriate questions for Occ Health to deal with. The aim is to gather all the information you need to make decisions about the employee’s ongoing employment, time off, and anything else connected to their current medical condition, prognosis and likely return to work.  Occ Health should also be asked to advise on any reasonable adjustments that could be made to the employee’s working environment to reduce any disadvantage caused by their disability.

You may want to have an occupational health assessment.

Does an employee have to talk to Occupational Health?

You can’t force an employee to agree to an Occ Health assessment.  However, many long term sickness absence policies state that if an employee unreasonably refuses to co-operate with a requirement to obtain medial or Occ Health reports they can be disciplined.  If yours says this, then you could threaten disciplinary action if the employee refuses to go to Occ Health.

But take care before crashing ahead with disciplinary proceedings, because without medical advice there’s no way you can be sure why the employee is refusing – what if their mental health condition is a disability and one of the impacts of their condition is that they are unwilling to co-operate?  If you discipline or dismiss them because of their disability, or because of something arising in consequence of their disability, that would be disability discrimination.

What is a reasonable adjustment?

Under the Equality Act, employers have a duty to make reasonable adjustments if an employee is at a substantial disadvantage because of their disability. The idea is to remove that substantial disadvantage or barrier to reduce the impact of the disability.

It’s hard to give examples of reasonable adjustments, because each employee’s condition, job and workplace will be different. However, reasonable adjustments can include changing the employee’s workstation or providing equipment to help them, like a height adjustable desk for employees with back problems so they can work standing or sitting, as their needs require.  Allowing regular short breaks, transferring a disabled employee to different working hours, employing a support worker, modifying procedures to allow appropriate companions at meetings, adjusting redundancy selection criteria, or widening doorways to allow a wheelchair to pass through, may all be reasonable adjustments.

What is the difference between reasonable and unreasonable adjustments?

Each situation will be unique, which makes it hard to generalise. The type of factors to consider will include the extent to which the adjustment would reduce the employee’s disadvantage, its practicability, cost, the employer’s financial and other resources, the nature of the employer’s activities, and so on. It’s a good idea to get medical evidence on the nature of the disability and its effect on the employee’s ability to do their job (see above about Occupational Health reports) – this will then feed into decisions around any reasonable adjustments.

When can you dismiss someone on long term sick?

There will come a point at which the business cannot continue with an employee on long term sickness absence, if the medical advice is that they are unlikely to return. Ill health capability is a potentially fair reason to dismiss, meaning that (ignoring disability for a moment) it’s potentially fair to dismiss an employee if they are not capable of doing their job due to ill health.

You’ll have to be able to show that the medical evidence supports that conclusion. You’ll also have to follow a fair procedure before finally deciding to dismiss.

In addition, if the medical evidence suggests that the employee is “disabled” under the Equality Act, you’ll also need to consider reasonable adjustments before considering dismissal, or else risk a successful disability discrimination claim for failure to make reasonable adjustments.

The point is that, if you’re acting fairly and in a non-discriminatory manner, dismissal should only ever be the last resort, once you’ve gathered evidence to show there is no other option.

However, employers can (as in, are able to) dismiss employees whenever they want.  You just need to be aware of the risks involved in dismissing unfairly and/or in breach of your duties under the Equality Act. We can advise on a “commercial” strategy that takes account of those risks, whilst advising on the business’s exposure to potential claims and how to reduce the risk of a successful claim being brought.

Employment Law Solicitor

If you need more help with the subjects covered here then do reach out to our expert solicitors.  You can leave a comment below, email employment@qlaw.co.uk or call us on 03300 020 863.

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