Law and procedure relating to whether an employer can dismiss an employee who is absent due to long term ill health
Article 130 2 (a) The Employment Rights (NI) Order 1996 provides that it is potentially fair for an employer to dismiss an employee where the employee is no longer capable of ‘performing work of the kind which he was employed by the employer to do’. This can include situations where an employee is incapable due to ill health.
In any dismissal however, it is essential that an employer can show that it has followed a fair procedure throughout the dismissal process in order to demonstrate that an employee has been treated justly; this is particularly pertinent when dismissing on the grounds of ill health. Procedure is key in these circumstances and can often place an onerous administrative burden on an employer.
Factors which are taken into account when assessing a fair procedure are as follows; -Thorough medical investigation -Consultation -Consideration of other options e.g. redeployment, reasonable adjustments, ill health retirement etc. -Compliance with statutory 3 step dismissal procedure. A failure to adequately carry out each of the above steps is likely to result in a finding of unfair dismissal.
An employer will also have to consider their additional obligations under the Disability Discrimination Act 1995. Please note however that the DDA does not impose an obligation on an employer to refrain from dismissing an employee absent due to a disability, it simply requires that any dismissal can be justified. In a recent Scottish case BS v Dundee City Council (2013) CSIH 91 the Court of Session (with the guidance in Spencer v Paragon Wallpapers Ltd in mind) summarised four main principles relating to the fairness of ill health dismissals as follows:
1.It is essential to consider the question of whether the employer could be expected to wait longer before dismissing. There is a balancing act to be performed between the ability of the employer to wait, for example, because they could obtain temporarylabourand because the employee has exhausted contractual sick pay, and the unsatisfactory state of affairs for an employer (and the costs associated with) having an employee on long-term sick leave.
2.There is a need properly to consult with the employee prior to dismissal. This can either work for or against the employee. If he says that he will be able to return to work in the near future, it works in hisfavour. If he says that he is no better and does not know when he will be able to return, it works against him.
3.The employer must take steps to discover the employee’s medical condition and his likely prognosis. However, this only requires the employer to obtain proper medical evidence and to ensure that the correct questions are asked and answered. The obligation is only to take such steps as are sensible in the circumstances.
4.Finally, the employer should address the question of length of service in every case. That is whether length of service, and the manner in which the employee worked during that period, indicates that he/she is likely to take steps to return to work as soon as he/she can.
Always bear in mind that the decision to dismiss is not a medical question for the employer, the panel are not there as medical experts. The decision to dismiss is an employment question to be taken on the basis of the information before the panel with the organisation’s needs and resources in mind.
As with all dismissals, an employer must ensure that it follows its own policies and procedures together with the statutory dismissal procedures throughout. For more information and advice in relation to ill-heath within the workplace please contact our Employment Team on 02890434015 or complete the form below:-