We are frequently asked to advise employers on how to deal with employees who have been off sick for a lengthy period of time. But how long should employers wait until dealing with the problem?
In The Independent there was recently an article about an Indian civil servant who had been dismissed – for failing to turn up for work for the last 25 years! Clearly that is something of an extreme, but not unheard of. A few years ago I was contacted by the new HR Manager of a large engineering business. She complained to me that she had over 70 employees on long term sick leave. Some had not been to work for decades, and some must have died off – or be making claims to the Guinness Book of Records to be the world’s oldest person! The company had simply not dealt with the issue and had never got round to dismissing them. Their sick pay had run out, so it was a case of out of sight, out of mind. It should be mentioned that this happened before the days of people on sick leave accumulating holiday in their absence.
So how long should an employer wait? The simple answer is that this needs to be assessed on a case by case basis. There will be some extreme cases where it is obvious very early on that an employee will never be able to work again, and in that situation an employer can take action to terminate the employment fairly quickly. In most cases, however, things are not so clear cut. In order for a long term ill health dismissal to be fair, and not to fall foul of the Equality Act as being disability discrimination, the employer will need to make an assessment of the employee’s health and the prognosis of the condition. In order to do this they will invariably need to obtain a medical report so that they are able to make an informed decision. They will then have to assess whether they can reasonably wait, or whether they need to take action to replace the employee who is off sick. Factors which a tribunal will assess in determining the reasonableness of the employer’s decision will include the size and resources of the employer, whether they had other jobs available which the employee might have been able to do, whether the employee could have worked reduced hours, and the impact of the absence on the organisation and the other staff. The tribunal will also look at the level of consultation with the employee about the future.
As mentioned above, and as we have covered in previous articles, employees on long term sick leave do accumulate holidays during their absence so some employers will want to terminate the employment sooner rather than later so that they can reduce their costs and move on. That said, many employers are extremely supportive of employees who become unfit to work, going well beyond the contractual or statutory payment obligations.
As a footnote, the HR manager at the engineering business mentioned above decided not to deal with the ill health issues which she had inherited, but to keep the house in order going forward. The business closed down a couple of years after that decision and all the employees were made redundant. An employee who had not been at work for over 10 years suddenly turned up and asked for his redundancy pay. He was entitled to it – the entire business was closing, and all the employees were being made redundant – and he was still an employee as he had never been dismissed. To add insult to injury, the years when he had not worked counted towards his continuous service. If ever there were a good reason not to sweep matters under the carpet…………
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]law.co.uk).