17th May 2022

When absence makes the employer ponder: tips for employers dealing with employees on long-term sickness absence

Background

Managing employees on long-term sickness absence can be a sensitive issue to deal with for employers. In some cases, employees may choose to keep their employer out of the loop with regards to their health, and the employer must consider the employee’s absence in the context of the wider needs of the business.

Generally speaking, it’s important that an employer obtains as much information as possible about an employee’s medical condition, and how this might affect their return to work. This would typically involve a letter from the employee’s GP or a report from an Occupation Health professional. The employee is entitled to refuse to cooperate however, and may not wish for their employer to have access to medical information about them. In such cases, a stalemate can materialise, whereby the employee remains on sick leave indefinitely and the employer has little to no information about a likely return to work. Alternatively, the employee may declare that they are fit to return to work without supporting evidence from a medical professional. So, what can the employer do?

The Law

An employer is entitled to dismiss an employee if it can show that the reason for the dismissal relates to the employee’s capability or qualifications for performing work of the kind for which they were employed to do. The employer must also show that it acted reasonably in coming to the decision to dismiss the employee. The question therefore becomes whether it was reasonable for the employer to decide that the employee should be dismissed as a result of their inability to safely perform their role. In such cases, the reasonableness of this decision depends very much on whether the employer followed a fair procedure.

Procedural fairness

Generally speaking, there are two things an employee should look to do before dismissing an employee for capability reasons relating to sickness absence. They should firstly take reasonable steps to establish the true medical position. In other words, they should not form their own unqualified view on the employee’s medical condition, and should instead seek up to date expert medical opinion. As noted above, this would typically involve an Occupational Health Report.

Secondly, the employer must consult with the employee themselves. Whatever the medical evidence may say, the employee must be given the opportunity to state their case. Without consultation, a decision to dismiss cannot be regarded as reasonable.

The employer must also consider if there are any alternatives to dismissal. Whilst they are not obliged to create a job for the employee, they must ensure that they have considered ways in which the employee’s role could be modified to allow for a return to work. An example might be removing the requirement for the employee to carry out any heavy lifting (if this can reasonably be done by another employee).

Refusal to co-operate

So, what if the employer has attempted to obtain an GP’s letter or an Occupation Health Report, and invited the employee to numerous meetings to discuss their absence, but the employee has withheld consent and refused to attend the meetings? The law is clear that where an employee refuses to co-operate, the employer may fairly dismiss the employee on the basis of the evidence available to it at the time of the decision to dismiss. Whilst this is not a free pass for the employer to move straight to dismissal at the first sign of difficulty, it remains an option open to the employer to dismiss the employee. This is of course as long as they can show that the reason for doing so was a concern that the employee would be unable to perform the role for which they were hired, and that all reasonable efforts were made to facilitate a return to work with the help of expert advice and consultation with the employee themselves.

If you want advice about an employment law or HR-related matter, you can speak to the Blackadders’ Employment Team who have offices in Glasgow, Edinburgh, Perth, Dundee and Aberdeen.

Ethan Laing, Trainee Solicitor
Employment
@EmpLawEthan
Blackadders LLP

www.blackadders.co.uk

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