Can you dismiss someone on long-term sickness absence?
If you have an employee who has been absent for a long time and you are struggling to know what to do about it, a recent Court of Appeal (CoA) case concerning a teacher who had been off for over a year with stress following a classroom incident (O’Brien v Bolton St Catherine’s Academy) has given some useful indicators.
Ultimately the CoA found that she had been unfairly dismissed, but it delivered some helpful advice. It said that it is not necessarily unfair for an employer to decide that the time has come to dismiss an employee who has been absent for over 12 months with no certainty as to when the employee will be able to return. It said that while an employee can easily put forward the argument: “give me a bit more time and I am sure I will be better soon”, there comes a time when an employer is entitled to some finality.
The severity of the impact on the employer of an employee’s continued absence must be a significant element when determining the point at which dismissal becomes justified. It is not unreasonable for a tribunal considering a long-term sickness absence dismissal to expect to see some evidence of the disruption to the business.
As in this particular case, where an employee produces updated medical evidence at the appeal hearing, the decision to dismiss must be fair on the basis of the information available to the employee at the time of the appeal. This might mean getting a second opinion from your own medical advisers before taking that final decision. As employers, you are not expected to be medical experts – but you are expected to take management decisions on the basis of information you have available or can reasonably seek.
If you have a situation relating to an employee who has been off sick for a long time, and would like advice on the situation, please get in touch
Posted on 28 Mar 2017