The First Leeds case is yet another example of a step which an Employment Tribunal would expect employers to follow in order to effect a fair ill-health dismissal. Many employers do not have benefits in place, such as ill-health retirement or a permanent ill-health insurance scheme. However, where these exist, it is essential that the employer considers the potential applicability of those schemes before any decision to dismiss is taken. Where due consideration has been given and the possibility discounted, it should then be more difficult for an employee to successfully argue in any internal grievance or claim before the employment tribunal, that they have been deprived access to ill-heath benefits and therefore unfairly dismissed.
There are key factors in managing an employee who is on long-term sick, which centre on communication with the employee and ensuring that proper procedures are followed. While each employee’s case has to be assessed individually, there are certain guidelines that hold true in most cases. In order to assist employers, we have set out our top 10 tips below.
Top 10 tips
Have a robust but fair written procedure to deal with employees on long-term sickness absence.
An employer’s policy should be well publicised and made available to all employees. Managers should be trained on how to implement the policy and be reminded of the policy when dealing with an employee on long-term sickness absence. Tribunals, not unreasonably, expect employers to follow their own policies!
Establish the reason for the absence.
It is essential to know the reason for the absence as this is likely to determine the process adopted by the employer. It also helps rule out or deal with any work-related cause or trigger for the absence. If the absence is stress-related, then the employer should refer to any stress policy and consider any counselling services that it provides or which may be appropriate for employee referral.
Stay in touch with the employee throughout the duration of their sick leave.
Show concern and support for the employee, whilst avoiding putting pressure on them to return to work. The extent and method of communication will depend on the circumstances of each case. Relevant factors in determining this might be the role of the employee, the medical reason behind the absence, the personality of the employee etc. Many employees consider that they are being “harassed” if their employer contacts them during absence on sick leave. This is not the case provided the level and content of the contact is reasonable and appropriate. In stress cases, early contact is advisable in order to ascertain whether there are work related issues which can be addressed.
Obtain medical evidence.
It is best to get the employee to see an independent doctor (i.e. not the employee’s GP) or an occupational health specialist. It may be appropriate for the employer to ask the doctor specific questions in their report, such as whether any impairment is likely to be covered by the Disability Discrimination Act 1995 (“the DDA”), when the employee is likely to be able to return to work, any steps which the employer could take to facilitate a return to work, the likelihood of future absences were the employee to return to work etc. Depending on the circumstances, it may also be appropriate to seek a report from a specialist, such as a psychiatrist or cardiologist.
It is essential for an employer to have in their possession up to date medical evidence before an employee is dismissed on grounds of ill health. Employers should avoid making a decision about an employee’s future employment based solely upon information obtained from the employee’s GP.
Consult with the employee regarding the medical evidence.
Ideally, there should be several meetings between the employer and the employee over a period of time to assess progress and exchange and discuss the medical reasons for the absence. Any meetings should be conducted in a manner which encourages an open dialogue with the employee. It is essential that employers obtain input from the employee on the medical evidence. Ultimately, it is for the employer to assess whether the employee is capable of returning to work and on what basis. This will depend to a great extent upon the consultation with the employee and the medical evidence.
Keep accurate minutes of any meetings or telephone calls with the employee.
Consider taking steps to facilitate a return to work.
Are there any steps that could be taken to enable the employee to return to work in some capacity in the foreseeable future? This should be considered by the employer and put to the employee for suggestions and discussion. For instance, there may be another position within the employer’s business that would be suitable for the employee’s current level of capability, or, they could reduce their hours and return on a phased or part-time basis. If possible, rehabilitation and retraining should be provided for the employee, if this will facilitate a return to work.
Consider the potential application of the DDA.
It is quite possible that an employee who is on long-term sick will be covered by the DDA and seeking up to date medical information and advice should assist with establishing whether that is likely to be the case. Where an employee is disabled for the purposes of the DDA, the employer is under a legal duty to consider making reasonable adjustments in order to help the employee back into work.
Invite the employee to a meeting to discuss concerns regarding capability.
Where appropriate, efforts should be made to hold meetings (with the employee’s permission) at the employee’s home, or at some other suitable neutral location that is convenient for the employee. Alternatively, meetings could be held via telephone or as a last resort by obtaining written submissions from the employee and considering these in their absence. Give the employee plenty of notice (at least one week) to prepare for the meeting. Make sure the employee has copies of all relevant documents in advance of the meeting and leave sufficient time for these to be read and understood.
Should any new information come to light in the course of the meeting, adjourn the meeting to allow the employee to consider this information or for the employer to do so and make any further investigations which may be required. It may also be necessary to give the employee time to gather more information, or consider the matters that have been discussed. Do not rush to a conclusion.
The First Leeds v Haigh Lesson!
Ensure that you have checked all your policies and have fully investigated any benefits which the employee may be entitled to, such as ill-health retirement or permanent ill-health insurance, before a decision to terminate employment is taken. For those employees accepted onto PHI schemes, be prepared to fight in the employee’s corner, if the PHI provider seeks to terminate benefit. The employee will still be your responsibility.
Follow the three-step statutory dismissal procedure for all ill-health dismissals.
Any resulting dismissal will be automatically unfair on procedural grounds, regardless of the circumstances of the case, if the three-step statutory procedure is not followed. The three steps are:
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to provide the employee with a letter inviting them to a meeting and outlining the circumstances that leads the employer to contemplate dismissing them.
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to hold the meeting and inform the employee of the outcome and their right to appeal.
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to hold the appeal hearing where an appeal has been received.
Before taking the decision to dismiss, an employer should consider all the surrounding circumstances, including the action taken in respect of similar circumstances in the past. Also bear in mind that where the employer has contributed to the employee’s illness, then it is still possible to fairly dismiss the employee but the tribunal would expect an employer to go the “extra mile” in those circumstances.
