How can I dismiss an employee on long-term sickness?
Under the Employment Rights Act 1996 (ERA), it is true that an employer can potentially face liability if they dismiss someone on long-term sick leave. However, this does not mean it is impossible.
The ERA recognises that there are some fair reasons for dismissing employees. One prominent example of this is capability.
An employee’s capability covers a wide range of factors including skill, aptitude, health, physicality and mentality. If you dismiss an employee for capability and they bring forth a claim, the Employment Tribunal will look at whether you followed a fair procedure and whether the dismissal was reasonable. In doing so, they will consider the following circumstances:
- the size and administrative resources of the employer;
- the nature of the employee’s illness, the prospects of the employee returning to work and the likelihood of the recurrence of the illness;
- the need for the employer to have someone doing the work;
- the effect of the absences on the rest of the workforce; and,
- the employee’s length of service.
Due to these complexities, employers should take legal advice before attempting to dismiss an employee on long-term sickness.