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According to the BBC, the number of UK workers on long-term sickness leave has hit a record high with over 2.5 million individuals affected.
This increase is attributed to increasingly common mental health issues among young people, back and neck pain likely caused by remote work, and an increase in post-viral fatigue with potential links to long covid. Since the start of the pandemic, over 400,000 more people have left the labour market due to ill health.
If you’re looking to protect your business, I’ll be covering the issues of long-term sickness in the workplace, alongside how you can exercise your rights to counter it.
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Why is long-term sickness an issue?
Firstly, long-term sickness is an issue due to nationwide labour shortages. Policymakers are already concerned with this and are trying to take steps to solve this issue as further sick leave will only hamper economic growth.
Secondly, long-term sickness also limits company expansion opportunities.
Let’s say you are an employer. Your expansion plan is ready, and you’re on the cusp of executing it. However, you are currently paying several employees who are on away on long-term sickness.
On top of their wages, you will also be paying for their replacements and resources to train them. This will lead to significant disruptions, both to the workflow and finances, thus draining your business.
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Why do employers not dismiss employees on long-term sickness?
At Britton and Time, we represent many employers in a wide range of legal matters. Whilst some would like to simply dismiss employees on long-term sickness, many are cautious of the consequences that would follow.
Moreover, many of our employer clients believe that the Employment Tribunal fail to consider the genuine needs of a business. Consequently, their verdict seems to always go in favour of the employee.
However, dismissing an employee on long-term sickness is still possible as long as you have an adequate reason.
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.
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How can I ensure my procedure is fair?
Most employers are well aware of the risks of fighting in the Employment Tribunal. The biggest risk is, of course, to receive a claim of unfair dismissal.
Decades of case law show that a procedure typically constitutes as ‘fair’ when the employer has taken the following steps:
1. Ascertain the up-to-date medical position
When an employee has an underlying health condition, you should obtain a medical opinion regarding when they are fit enough to return to work. This should also include whether the employee is suffering from a disability. Remember, if the employee has a disability, you will need to make reasonable adjustments for them.
Once you obtain medical evidence, you should then consider whether it would be reasonable to wait for a further period before taking further action. If not, you should proceed and consult with the employee.
2. Consult with the employee
In the vast majority of cases, your consultation with the employee will be central to the fairness of any dismissal. Failure to have a consultation will almost certainly mean the dismissal was unfair.
Naturally, anything an employee says could play both in favour and against a potential dismissal. If they say that they want to come back to work soon and are hopeful to recover, it is something that will weigh against dismissal. However, if they say they’re still not okay and don’t know when they can come back from long-term sickness, a dismissal will be more reasonable.
3. Consider alternative employment
If it’s possible to offer the employee an alternative form of employment, you should try to do so. This may not always be feasible, but it goes to show that you have acted fairly, and were left with no choice other than dismissal.
What happens next?
Once you have taken the steps above to deal with long-term sickness and you satisfy the Employment Tribunal that the procedure was fair, there is one final, critical hurdle. The Tribunal must believe that, in all the circumstances of the case, it was not reasonable for you to give the employee more time.
The answer to this, as you can imagine, will be highly fact sensitive and will depend on the availability of temporary cover (including its cost), and the size of the organisation.
How can we help?
Whilst it is possible to dismiss someone that is away on long-term sickness, you need to be careful. Each step you take will have hidden obstacles and nuances to overcome, each pertaining to your specific scenario.
To have the best chance of success, you should consult an expert employment solicitor. This will allow them to assess your case and give you an overview of your legal standpoint.
Get in touch with our team by calling 0203 007 5500 or sending an enquiry to info@brittontime.com.
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