What should an employer consider before dismissing a sick employee who is regularly absent from work for long periods of time? Esther Smith, partner at Thomas Eggar, and Charlotte Cooper, solicitor at Mills & Reeve, advise.

The question:

We have an employee who returned to work two weeks ago, following seven months’ sick. He has already had four sick days since his return a fortnight ago and is still off. This current sickness is unrelated to why he was off for seven months.

We have held the position open for him during his seven-month absence period, believing following his recovery he would return to work. A temp is not an option as it will take six to nine months to get them fully trained. We want to investigate dismissing him, however we are worried as he has diabetes which is covered by the DDA.

We feel that if he stays employed with us, this will be an ongoing pattern of a couple of weeks at work then a couple off sick. As we are quite a small company, this is very disruptive and de-motivational for the rest of his team. If we knew in X months he would be fit for work again, we would persist but I really can’t see that happening. Do you have any advice on how to proceed?

Legal advice:

Esther Smith, partner, Thomas Eggar

I am sure you appreciate this is not a straightforward issue. However, it is true to say that an employer can consider a capability dismissal where an employee’s medical condition renders them incapable to attend work on a regular and consistent basis, as much as it does to someone who is permanently incapacitated.

You do need to follow the correct procedure as always and consider, for the purposes of both unfair dismissal and disability discrimination, whether you could offer him part-time work which he may be able to cope with given his health issues. You would also need to get a medical opinion that supports your assumption that the medical condition meant they could not attend on a regular basis.

Alternatively, if the ongoing absence is not linked in any way to his condition, and therefore should not necessarily be a continuous issue, you should really draw a line under the previous bout of long-term absence and deal with ongoing attendance issues under your disciplinary procedure.

Given the potential for getting this one wrong, you really should be taking specific advice, but there are options open to you.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

* * *

Charlotte Cooper, senior solicitor in the employment team, Mills & Reeve

Dealing with sickness absence of this nature is tricky. In dismissing this employee you will want to avoid an unfair dismissal claim and any claims of discrimination under the Disability Discrimination Act 1995 (DDA).

I suggest meeting the employee to discuss the basis of his sickness absence and its likely length. If the new period of sickness absence is likely to be long term or if the employee suggests that the absence is connected to his diabetes or his previous period of long term absence, then it is advisable to obtain a medical report to determine the prognosis, including whether the employee will be well enough to return to work in the foreseeable future.

It is important to establish whether the absences are related to the employee’s diabetes and therefore whether the employee may be protected by the DDA. A medical report could be obtained from your occupational health provider (if you have one), from the employee’s GP or you could appoint a separate specialist. You will need to comply with the requirements of the Access to Medical Reports Act 1988 (as applicable).

As much clarity as possible should be sought from the medical adviser as to whether the illness is caused or connected to the diabetes and if so what effect (if any) the illness and the diabetes have on the employee’s normal day-to-day activities. Long-term health conditions such as diabetes can fall within the definition of a ‘disability’ if they have a substantial and adverse effect on the employee’s day-to-day activities.

You should also ask the medical adviser to advise on what, if any, reasonable adjustments could be made to the working arrangements or the job itself in the event that the employee is potentially ‘disabled’. (You may therefore find it useful to include with your letter of instruction to the medical adviser a copy of the employee’s job description). It is advisable to discuss the contents of the medical report and any recommendations with the employee.

If the employee’s sickness absence was caused by or is related to a disability, an employment tribunal would require you to make reasonable efforts to accommodate this employee despite the fact that his absence is disruptive and de-motivational for the rest of his team.

If the employee is not capable of doing his job, even with reasonable adjustments, you should consider whether there is another job within the company which might be more suitable for him.

In determining what is ‘reasonable’, the employment tribunal will take in to consideration that you are a small company with limited resources and that having an employee absent for a lengthy period of time will have a significant impact. In circumstances where the medical advice is that the employee will not be well enough to return to work in any capacity for the foreseeable future, you may look to dismiss the employee on the grounds of capability.

If the sickness absence is part of an ongoing pattern and where this is not related to or caused by a ‘disability’, then the employee should be informed that his sickness absence is being monitored, that the level of his attendance is a cause for concern and the impact his absence is having on the business. The employee should be given a time frame for improvement and this should be monitored. The employee should be informed that dismissal may result if there is no improvement. Care should be taken in this scenario where you have a period of lengthy absence followed by a series of short term absences.

If the period of long-term absence is related to or is deemed to be a ‘disability’ then this should be ‘discounted’ from the employee’s sickness absence record for monitoring purposes.

Any dismissal on the grounds of capability should comply with the three step statutory dismissal procedure to avoid an automatic unfair dismissal.

Charlotte Cooper can be contacted at [email protected]. For further information, please visit Mills & Reeve.

* * *