ILL HEALTH DISMISSALS

It can be one of the most difficult times when dismissing an employee who is off work for illness and if you get it wrong you can have a claim on your hands.

COMMON MISTAKES EMPLOYERS MAKE

No contact with the Employee – Employers ignoring an employee when they are absent through ill health.

Employers not taking action is very common as they think they do not need to do anything and/or do not know what to do and are concerned with doing the wrong thing. Employers often fail to communicate with the Employee to fully understand the reason for absence and possible adjustments needed to enable the return to work of the employee. Hence, employees can often remain on sick leave for months, if not years. It is important for Employers to be aware that employees accrue holiday whilst they are on long term sick which is a cost to the Employer.

The level of contact

Employers are often worried about contacting employees when they are off sick. Employers are able to contact employees when they are off sick and indeed have an obligation to do so. In fact if an employer did not make contact then the perception from an employee may be that the employer is not bothered about their health. An employer cannot avoid this obligation by saying that the employee never contacted them. However, an employer does have to be careful about excessive contact as it would be inappropriate to bombard an employee with telephone calls and/or letters.

Failing to realise the problem

In order to ensure that a dismissal is fair an employer will need to show what reasonable steps have been taken to understand the employee’s medical condition and likely prognosis. In this respect, every effort should be made to obtain the employee’s consent to make enquiries of a medical practitioner to gain such an understanding. Employees cannot be compelled to undergo a medical examination or submit to disclosure of medical records unless they have agreed to it but if they refuse to consent the employer will not be criticised provided that it has attempted to obtain medical advice.

A lack of clarity

When making contact with medical experts it is important to understand the information required and to ensure that clear instructions are given to medical experts so that the medical report answers the specific questions about the specific employee. If there is an inadequate report employers need to go back to the expert. Employers also need to be aware that depending on the illness they may need a specialist rather than a GP report. A tribunal may consider that it was unreasonable to limit investigations to a medical expert who does not specialise in the relevant field. Further, a GP’s report may not contain a clear prognosis and an employer may be criticised if it dismisses on the basis of an unclear prognosis.

Not giving warnings

Employers need to ensure that they warn the employee that dismissal could be contemplated if they do not return to work, if sufficiently fit, and ensure that they meet with an employee before they dismiss. In order to form a view on the likelihood of the employee’s return to work the employer must make reasonable enquiries. This means that the employee should be consulted fully so as to establish the reason for the absence and employee’s view of when he/she is likely to return to work. The employee should be made aware that the employer is contemplating dismissal if the employee does not return to work if deemed sufficiently fit to do so. This is not so much a disciplinary warning as giving the employee full notice of the potential outcome if his/her health does not improve.

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