We are increasingly being asked to advise businesses on how to deal with members of staff who have been off work due to a long period of illness. There is a common misconception that nothing can be done and the employee cannot be dismissed.
Q.Can I dismiss an employee who has been absence through illness for a long time?
A. The law provides a framework which would allow an employer to dismiss an employee provided the employer has a fair reason and has acted reasonably in dismissing the employee for that reason. The employee who has a long-term illness with no reasonable expectation of recovery in an acceptable and reasonable period can be dismissed on the grounds of incapacity.
Q. What is considered to be long-term?
A. This varies and it depends on the impact hat the period of absence is having on the business and the businesses ability to cope with the person being away.
Q. Does a business need to obtain medical reports?
A. The business should ensure that they keep in contact with the employee throughout the duration of their absence and they should ask the employee for his or her views about their condition and whether they think they will be able to return to work. The business should undertake the appropriate medical investigations and obtain medical opinion on the employees condition which may involve obtaining a medical report from the GP or medical specialist. Once I medical report has been obtained this should be reviewed with the employee which can be done in writing or face-to-face and allow them to put forward their own opinions as to their condition or recovery and their anticipated return to work date. The employer should obtain the employee’s consent to approach their GP or medical experts.
Q. What information should the employer obtained from the employees Dr?
A. The employer must be careful to avoid breaching the data protection act and so they should only obtain information about the employees medical condition relating to the nature of the illness and its effect on the employee’s ability to do his or her duties and if appropriate obtaining an opinion as to whether the employee is disabled for the purposes of the Employment act 2010. The employer should enquire as to the likely period of absence and also the type of work which the employee will be able to do upon their return to work. When writing to the doctor concerned it is advisable that you inform them as much as possible as to the nature of the employees work, that Barnes was replaced upon them and the purpose for which the report is being considered i.e. whether or not to dismiss the employee for capability reasons. If the employee has an upstate job description this can also be sent to the doctor as background information together with any other relevant information about the employees working conditions that may assist the doctor.
Q. Should I obtain an occupational health report?
A. Yes it is is advisable to obtain occupational health report. There may be a provision within the employees contract of employment requiring them to obtain an occupational health Dr however if there is not you will require the employees consent to do so. It is best practice in either circumstance to request the employees consent. If there is no contractual right or where specialism advice is needed which cannot be provided by an occupational health Dr and a report is required from the employees own GP the employee must consent and the employee must be told of their rights to withhold consent and the rights to have a copy of the report before it is given to the employer and the right to amend or comment on any errors. Although this should not be the only report that is obtained as this make me considered to be unfair. If a decision to dismiss is taken on medical grounds and there is any uncertainty about the illness or likely duration they specialist should be consulted, failing which the employer may not be able to argue that its decision to dismiss was reasonable. If you do instruct a specialist they must have all the available evidence as stated above. Medical report must be up-to-date. It is always best to obtain the most appropriate and suitable report from a specialist in a relevant field.
Q what happens if the employee refuses to provide their consent?
A. In such circumstances the employer is entitled to make a decision based upon the information available to them at the time.