Sickness Absence

Sickness Absence

Sickness absences can be difficult for the employer to deal with on many levels but they are almost certainly disruptive to a business and need to be dealt with properly. The law is clear that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss. Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill-health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps be taken by the employer to discover the true medical position.

The following factors are likely to be relevant when considering the reasonableness of the decision to dismiss:

  • 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.
  • The extent to which the employee was made aware of the position.
  • The employee’s length of service.

Taking reasonable steps to ascertain the true medical position before deciding whether to dismiss an employee is of crucial importance (although there may be cases of short-term intermittent absences where this does not apply.) This will mean seeking up-to-date information about the nature of the illness and the likely length of absence or prognosis. If the medical evidence is ambiguous, the employer should seek clarification.

A report may need to be obtained from more than one health professional, which may include:

  • The employee’s GP.
  • An occupational health physician.
  • A doctor retained by the employer

It is very important that when writing to a doctor for information about an employee’s health the doctor is asked the right sort of questions.  In the event of the tribunal proceedings that letter will be disclosed to the tribunal and could prove very important.

Consultation with the employee is central to the fairness of any dismissal for ill-health. The courts have held that the fact that the employee had not been consulted rendered the dismissal unfair.

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