Disabled Employee and Long Term Sickness
Q: We have a disabled employee who has taken lots of sick leave – over 6 weeks now which is causing us headaches and financial harm to us to cover her work? Are we able to dismiss her?
A: There’s a lot to cover to answer this query in depth and we could advise all day on possible action strategies but the following summarises the salient legal considerations and best practice.
You can indeed dismiss (the fact is that any employer can actually dismiss whoever and whenever they want – whether there are consequences as a result of doing so is another matter!), BUT you do need to tread carefully and follow some stepping stones to get there to avoid any potential discrimination claim along the way or after the event.
You should arrange to meet her (at home or off site - wherever convenient, if not at work) in order to discuss their absence and find out:
(1) if the condition is a disability and covered by the Equality Act 2010;
(2) how much time she’s likely to be absent for (i.e. a prognosis); and
(3) if any reasonable adjustments need to be made to enable her to work.
If she can’t return to their current role (or an alternative one) in the foreseeable future, you’ll need her written consent to obtain a medical report from an Occupational Health Advisor, their doctor, or an independent medical specialist.
When requesting this, include a copy of her job description and duties. Ask for detailed clarification on the problem. If it’s a disability protected by equality legislation, but the report states that she can’t work in any role for the foreseeable future, or she's unlikely to do so consistently, you could proceed to dismiss on the grounds of capability.
Bear in mind that how you deal with these matters depends on all the circumstances involved. A smaller business maybe has a slight advantage here in that the businesses more limited resources means you can’t afford to have an employee off sick for long periods and hence makes the decision more reasonable in the circumstances.