An employee who is absent from work for a long time because of sickness or ill-health is entitled to a certain level of sympathetic consideration from their employer. An employer is not however required to employ an employee indefinitely in circumstances where the employee has been unfit for work for some time.
Employers should have procedures in place for dealing with medium to long term absence. A consistent application of the procedures assists an employer in demonstrating reasonableness if capability related dismissals are subsequently challenged by the employee.
Generally speaking the questions to be asked are:
What is the duration of the employment? How long it is expected the employment would continue i.e. to normal retirement age/fixed-term/ specific purpose? What is the nature, effect and likely duration of the illness? What is the medium to long prognosis/medical opinion on the likelihood that the employee will return to work? What do the terms of the sick pay policy provide - has the employee exhausted the sick pay scheme? »» In all of the circumstances would it be reasonable to expect an employer to wait any longer for the employee to recover and resume his or her duties? Is there a disability/PHI Scheme and what is the employees status with regard to same? Contracts of employment and/or the Company sick pay policy (if applicable) should provide for the right to refer an employee to a medical practitioner. It is also important that the contract and the policy explicitly provide that the employee authorises such medical practitioner or specialist to disclose the results of their examinations to the Company. Employee should, after a certain period of absence, be referred to a nominated medical practitioner. Depending on the outcome, a step plan should then be devised regarding subsequent assessments/return to work plan and/or specialist intervention depending on the nature of the illness.
Where the reason cited for the absence is work related stress, employers should be mindful that personal injuries claims could be initiated and increased vigilance should be exercised. Depending on the circumstances surrounding the certification, the company's employer's liability insurer may need to be notified of potential legal proceedings. It is recommended that medical referrals are expedited in cases of work related stress - with almost immediate referral being optimal.
Dismissals on the Grounds of Ill Health
In all cases of dismissals on the grounds of ill health is being considered enquiry should be made as to medium to long term capacity to return to work. The employer should consult...