The question
We have an employee that slipped and fell at work about a year ago, but we are not sure if the accident was staged or genuine. He was taken to hospital and discharged the same day.
The staff member had booked two weeks of holiday prior to the accident, which was due to start two days after it took place. He flew to Brazil as arranged and has not returned since – which is over a year ago.
We understand that he has made a claim for the accident, which is currently being dealt with by the insurers. The employee had regularly been sending in sick certificates from Brazil, but stopped in August. It is difficult to obtain a doctor’s report because he is located in another country and because of the language barrier.
The employee claims that he is waiting for an insurance pay-out so that he can have an operation in Brazil and then return to the UK to continue work. We have asked him to come back for an absence review meeting but, because he is so far away, he says that it is not possible. We cannot refer him to occupational health for an assessment either for the same reason.
My question is, can we dismiss him based on the limited information available to us or do we need to write to his doctor even though they are based in Brazil? What is our legal position here and what options are open to us? Can I also add that this is the second claim made by this employee – the first is still pending.
The legal verdict
Esther Smith, a partner at Thomas Eggar
Given that the employee in question has not provided sickness certificates for the last six months or so, he is technically absent without authority.
As a result, if you wanted to dismiss him, given that he has over a year’s service and is, therefore, protected against unfair dismissal, you would need to show that such action was for one of a number of potentially fair reasons.
In this case, the dismissal would likely either be for misconduct (on the basis that he is absent without authority) or capability (on the basis that he is medically incapable of performing his job).
The difficulty with the second route would be in establishing his medical unfitness, given his lack of communication and the difficulty in getting a medical report on him while abroad.
I would, therefore, start the dismissal process on the basis of his being absent without authority and write to him inviting him to a disciplinary on the basis of his unauthorised absence. If he produces a medical report, it may be necessary to revert to the capability argument, but I would certainly start down the misconduct path initially.
In terms of the employee’s insurance claim for the accident, this is largely completely separate from his rights and protections as a worker. The personal injury claim would be dealt with entirely by your insurers and is a separate process from any considerations relating to dismissal.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham
A dismissal is unfair unless an employer can show that it was undertaken for a fair reason and that dismissing the employee for that reason was fair in all circumstances.
An important part of this is showing that a fair procedure was followed. In the case of sickness or incapacity, one of the most common potentially fair reasons for dismissal relates to the staff member’s capability, especially in cases of long-term absence.
Dismissal could, however, take place for another reason in these circumstances.
For a fair dismissal to be undertaken on capability grounds, employers must show that their decision to treat the employee’s absence or attendance record as a reason for dismissal was within the range of reasonable responses (this is a legal test that has a specific meaning).
Therefore, among other things, you should consider the nature of the staff member’s condition, his likely length of absence, the impact of his absence on colleagues and the business generally and his length of service.
In order to assess the employee’s capability, it is necessary to have medical evidence in order to understand his condition and its impact on his ability to continue working.
It will, however, be difficult for an employer to show that a staff member has been fairly dismissed for capability reasons connected with sickness or incapacity without having first obtained reliable medical evidence.
Ordinarily, employers would seek the employee’s consent to an examination by a company doctor or occupational health specialist. However, in this case you may need to find alternative ways of obtaining the relevant information, such as contacting his doctors in Brazil.
Complex issue
But if you do so, it would be advisable to contact the staff member concerned first in order to explain what information is being sought and why, as he will probably have to give his consent for any information to be released to you.
There is, of course, a limit on the steps that you have to take before you can decide to dismiss, however.
For example, if you can show it is not possible to obtain medical input (because the employee refuses to provide you with sickness certificates and/or obstructs your attempts to obtain a medical report), you may be able to justify dismissing him on the basis of the limited information you have.
But this is a complex issue that depends on the facts. If the staff member did bring an unfair dismissal claim, you would need to convince an employment tribunal that you had complied with the necessary legal requirements, for example, by giving evidence on the steps that you took (and if these were limited in nature, explaining why).
As a result, while you may be able to go down the dismissal route based on the limited information available to you in these circumstances, it would be advisable to obtain specific legal advice before doing so.
With regard to sickness certificates, if the employee has breached provisions in his contract or in your sickness reporting procedures by failing to provide this documentation, it could amount to a disciplinary issue – although be careful to avoid any suggestion that you are simply using this as an easy and quick way to dismiss him (this could happen, for example, if you have not insisted on obtaining this documentation previously and suddenly take action).
As part of any capability procedure, you should always carry out the normal process of meetings and consultation. In this instance, such activity will probably need to be modified according to the circumstances, for example, by holding meetings over the telephone or inviting the employee to make written submissions.
Potential claims and costs
But it is also worth considering whether the staff member’s condition could mean that he has a disability. This is another reason why you may want to seek medical input.
If it could be the case and he is dismissed, there is a risk that he will bring a disability discrimination claim against you. If he does have a disability, you will need to consider whether there are any reasonable adjustments that could be made.
Further medical information from the employee’s doctors in Brazil would help to alert you to these circumstances, which is another good reason for trying to obtain it.
In your statement, you do not say whether you are continuing to pay the staff member any sick pay or other benefits. It is worth mentioning here that employees on long term sickness absence continue to accrue holiday.
Therefore, depending on the current cost of this situation to you, one option might be to contact the employee in order to try to ascertain the likely timeframe for any insurance pay-out and his return to the UK.
On the basis of the information provided, you may wish to consider waiting for the employee to return to the country and carry out an absence review and/or return-to-work meetings with him then – although I can see that this suggestion may not be ideal given the inevitable delay in addressing the issue.
Another consideration is whether the employee is eligible for permanent health insurance or similar benefits under the terms of his contract. The issue here is that, employees who are dismissed in circumstances where they are eligible for PHI, could potentially bring a claim against their employer for the value of the lost benefits, which could be extremely expensive.
Also think about whether you are required to notify your insurer about your proposed action as it could affect their losses in the longer term.
Adam Partington is a solicitor at Speechly Bircham LLP.
