I have an employee who has previously had an on-going poor sickness absence record over several years. There have been a number of meetings to discuss this issue, with opportunties to improve, showing our understanding to his contributing personal circumstances (which are often aggrevating his asthmatic condition), but finally a written warning was issued. A month later, the employee has been signed-off for depression (4 weeks so far)and we are going to obtain a medical report from his doctor.

We do have the following clause in our contract

‘If you are absent from work due to ill health, accident, or mental or physical disability or incapacitated from performing your duties to the standard customarily required from you for a period exceeding 60 working days consecutively or 80 working days in aggregate in any 12 month period the Employer may, after due consideration but at its discretion, by notice in writing terminate your employment.’

Can we still use this clause if the reason for his sickness could be linked to disability legisilation e.g. asthma and depression?
Sarah Toye