If it becomes necessary to dismiss an employee on long-term sick leave, the courts have urged employers to treat them with ‘sympathy, understanding and compassion’. Any decision must be made on up to date medical evidence with a proper prognosis.
Full consideration, should be given to whether and when an employee will be able to return to some or all of his or her duties, and if there is anything the employer can do to facilitate this. Once full information is available, the decision must be made only after consultation with the employee.
It is also important to remember that statutory dismissal procedures apply and any failure to comply with this to the letter will render the dismissal automatically unfair.
If the employee is disabled as defined by the DDA, in addition to showing that the dismissal was procedurally and substantively ‘fair’, the employer must show that it was ‘justified’.
Finally, permanent health insurance is often seen as the ultimate panacea for employees on long-term sick leave.
While this is undoubtedly a useful benefit, employers need to remember that insurers do not necessarily pay indefinitely and it is quite easy to get drawn into a dispute with the insurers several years down the line when they have decided – sometimes validly and sometimes on the flimsiest of evidence to stop paying.
Employers offering private health insurance (PHI) must ensure that any explanation of the scheme offered to employees do not amount to a contractual promise to pay that sum. Without due care, an employer can find itself liable for ongoing benefits if and when the insurer stops paying!
For further information, contact Daniel Isaac, partner in the employment team, at City law firm Withers at daniel.isaac@withersworldwide.com
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