Managing long term sickness absence and capability

Lack of capability, including when assessed with reference to health, is a potentially fair reason for dismissal under s.98 of the Employment Rights Act 1996. The employer must show that it acted reasonably both in treating the long-term ill health as a sufficient reason for dismissing the employee and in the procedure adopted to affect the dismissal. When an employer is considering dismissing an employee on grounds of long-term ill health, it should investigate the prospects of the employee being able to return to work within a reasonable time. A fair procedure should include:

  • consultation with the employee;
  • a medical investigation;
  • consideration of alternative employment; and
  • possible ill-health early retirement if there is provision for this.

The decision to dismiss is not a medical question but one for the employer to take in the light of the medical evidence available. However, the fact that an employer has obtained medical evidence does not absolve the requirement to consult personally with the employee.

An employer that dismisses an employee on the ground of ill health without considering any reasonable steps that it could take to enable the employee to return to work may be liable for disability discrimination as well as unfair dismissal, if the employee is disabled within the meaning of the Equality Act 2010.

An employee who is on long-term sickness absence also continues to accrue their annual leave so may wish to book a period of annual leave in order to receive full pay for that period, for example if they have exhausted all entitlement to sick pay or is receiving only statutory sick pay.

The law does not prevent employees from taking annual leave while on sickness absence. It would usually be in an employer’s interests to agree to an employee’s request to take annual leave, to avoid them accruing significant amounts of leave while on sickness absence. If it refuses the request, the employer will have to allow the employee to take the accrued annual leave on their return to work (even if this means carrying it over to the next leave year), or pay the employee the accrued holiday pay on termination of employment.

Further, there is a risk that the refusal of a request for annual leave when the employee is already absent from work could be a breach of the implied term of mutual trust and confidence. The employer would not be able to argue that it had to refuse the request in order to maintain staffing levels.

Should you wish to discuss any long-term absence issues and how to managed, please call our CIPD qualified consultants on 0800 9995 121.

Privacy Policy



Powered by The Logic of Eight - Creative Media