Long Term Sickness Absence

Where an employee has been absent for a long-term continuous period, the employer should try to establish the actual medical position and consult with the employee before deciding whether to dismiss. The employer should obtain a medical opinion on the prognosis for the employee’s underlying health condition and when he/she will be fit enough to return to work. 

The employer must also consider whether the employee is suffering from a disability, as the employer would be under a duty to make reasonable adjustments and not to discriminate if the employee does have a disability. This is why a referral to occupational health will be advisable. 

Fairness

Fairness in cases of long-term absence will involve the following key elements:

• ascertaining the up-to-date medical position on when the employee is likely to return;

• consulting with the employee; and

• considering the availability of alternative employment.

Assuming the tribunal is satisfied that an employer has followed a fair procedure, the final question will be whether the employer can be expected to keep the employee's job open any longer. How much longer an employer may be reasonably expected to wait will be a fact-sensitive question based on the nature and context of the employee's job and illness, as well as the size of the employer and the amount of resources available to them.

The Long-Term Sickness Dismissal

When an employee is dismissed due to long-term sickness absence, this typically falls under the category of a capability dismissal. "Capability" in this context refers to an employee's skill, aptitude, health, or any other physical or mental quality relevant to performing their job. Dismissals for ill health are considered potentially fair reasons for termination, as they relate to the employee's ability to perform their job duties.

Range of Reasonable Response

To determine if such a dismissal is fair, an employment tribunal will apply the "range of reasonable responses" test. This means the tribunal assesses whether the employer's decision to dismiss the employee fell within the range of responses that a reasonable employer, in similar circumstances and in that business, might have adopted. The tribunal must not substitute its view for that of the employer.

For a dismissal based on long-term sickness absence to be deemed fair, employers should generally ensure:

Reasonable Investigation

The employer must conduct a reasonable investigation into the employee's medical condition and prognosis.

Medical Evidence

It is crucial for the tribunal to consider medical evidence when assessing an ill-health dismissal. This helps estimate how long the employee would have remained employed and what benefits they would have received.

Fair Procedure and Consultation

While the Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) explicitly excludes ill-health dismissals from its direct application, general principles of procedural fairness still apply. This includes consulting with the employee, allowing them to make representations, and warning them about the risk of dismissal. The non-statutory Acas guide that accompanies the Code also guides managing long-term absence.

Consideration of Alternatives

Employers should explore alternatives to dismissal, such as making adjustments to the job or offering suitable alternative employment. The "range of reasonable responses" test will include whether the employer considered these options.

Reasonable Adjustments for Disability

If the employee's ill health amounts to a disability under the Equality Act 2010, the dismissal could also constitute unlawful disability discrimination, even if it is considered fair under the Employment Rights Act 1996 (ERA 1996). A failure to make a reasonable adjustment during the dismissal process (e.g., providing an extension for an appeal) will not automatically render the dismissal unfair under the ERA 1996. Still, it can lead to a separate discrimination claim.

Conclusion

It's important to note that if an employee's ill health was caused or contributed to by the employer's conduct, this fact alone does not automatically render the subsequent dismissal unfair. However, it is a relevant factor for the tribunal to consider under Section 98(4) ERA 1996. However, losses arising from pre-dismissal breaches of contract that caused illness (e.g., psychiatric injury due to the employer's conduct leading up to dismissal) are generally considered separate common law claims, not recoverable within an unfair dismissal claim itself. Similarly, supervening ill health after dismissal will typically not break the chain of causation for compensation purposes, and tribunals will assess compensation based on what the employee would have received if still employed (e.g., contractual or statutory sick pay).