The reason for the EAT decision is based on the considerable injustice that might occur if an employer dismissed a sick employee who might be entitled to a retirement pension, without having considered that option. Even where the Acas code does not apply, employers shou… You must ensure there are justifiable reasons and that you have explored every avenue prior to getting to the stage of dismissal due to ill health. The EAT’s decision confirms that employers that dismiss on the ground of ill health, where there is no misconduct or culpable poor performance, are not bound to follow the Acas code. The EAT has provided a useful summary of the law in relation to ill-health capability dismissals and there are points for employers to bear in mind when deciding whether to dismiss: Universal Credit. googletag.pubads().enableSingleRequest(); If you are considering terminating an employee’s contract on the grounds of ill health, it is important to follow a fair and reasonable procedure for someone who is on long term sick. His contractual notice at 1 month is more than 1 week longer than this, so the employee is not entitled to be paid. That is whether length of service, and the manner in which the employee worked during that period, indicates that he is likely to take steps to return to work as soon as he can. Increased mortality must shape wellbeing and benefits decisions in 2021, Firms underestimating importance of benefits in these challenging times, Employers warned not to force employees to take COVID-19 vaccine, Employers reveal top skills required for 2021. So when will a dismissal for ill health be fair? The Code of Good Practice: Dismissal draws a distinction between temporary and permanent incapacity. I am writing to confirm that, following the meeting held on [DATE], it was decided that your employment with [NAME OF EMPLOYER] should be terminated on grounds of ill-health. Summary: When is it reasonable to dismiss an employee who has been absent from work due to ill-health for an extended period of time? An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. The doctor concluded that his health was improving, he was not a candidate for ill-health retirement and he should be able to return to work within one to three months (although this was subject to his GP signing him off as fit for work). ARTICLE BY: Viola Lloyd | Published: 12 April 2018. var googletag = googletag || {}; Dismissing an employee due to ill health is anything but straightforward. Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. Ben Power. As for reasonableness, a number of factors should be taken into account, including the employee’s length of service, the effect of their absence on the workforce, the requirement for the role to be performed, the likelihood of the employee being able to return to work and the nature of their illness. The process is normally instigated by the employer when an employee has been absent for a long period, or periods, due to ill health and is unlikely to return to work.. The occupational health assessment and additional medical advice determined that C suffered from a psychotic illness. Whilst absent, he was charged with a criminal offence following a complaint made about him by a woman with whom he was having an affair. 2: No reasonable employer would have dismissed the employee only nine days after receiving the indication from Occupational Health that he would be fit to return to work in one to three months. It is a common misconception that dismissal due to ill health is automatically unfair or unlawful. The Court of Session decided to remit the case back to the same tribunal to consider those four issues. C was suspended on full pay and referred to the Police Child Protection Unit. 4: Since there was an inconsistency between the medical advice and the employee’s own understanding of his medical condition, no reasonable employer would ignore the advice and dismiss an employee with 35 years’ service without first clarifying the true medical position. googletag.cmd = googletag.cmd || []; Personal Independence Payment (PIP). OC326242. calling Dismissing an employee due to ill health is anything but straightforward. The absence can be prolonged or intermittent but frequent. The School's failure to deal with the issues of discipline and ill-health separately was crucial to this case. This means employers can dismiss someone for sickness without following the process recommended in … If an employee’s illness or injury is only temporary and likely to be of short duration, no dismissal is possible for that reason alone. It is not unusual for an Employer to be required to deal with Ill Health Incapacity In the previous articles, focus was placed on dismissal for misconduct and more specifically the procedural and substantive fairness required for such dismissals. He had been absent from work for over a year, the decision to dismiss had been deferred on five previous occasions, and they could not wait any longer. In this case, the circumstances which led to the employee’s dismissal tell a sad tale. It found that the employer was responsible for the breakdown in her mental health as a result of mishandling her grievance, and so “no reasonable employer would have dismis… (4)        Should have considered whether the employee’s length of service was relevant. Ill health retirement options. The Court of Session summarised the four main principles relating to the fairness of ill health dismissals as follows: It is essential to consider the question of whether the employer could be expected to wait longer before dismissing. The charge was later dropped, but led to him separating from his wife and being signed off work with depression and anxiety. In Holmes v Qinetiq Ltd [2016] IRLR 664 EAT, the EAT held the "Acas code of practice on disciplinary and grievance procedures" has no application where an employer does not allege culpable conduct by an employee. Can an employer discipline an employee where they refuse to follow a management request in the course of carrying out a trade union action? Before dismissing an employee for reasons of ill health an employer should find out the current medical position. Should it wait until the employee has exhausted the appeal process with the Financial Ombudsman? Under their contract of employment they are entitled to receive four weeks' notice. This will usually involve obtaining with the employee’s consent a report from the employees GP or consultant. However, if an ill health dismissal does involve some element of misconduct or poor performance that would otherwise lead to disciplinary action, for example, a failure to follow sickness absence procedures, employers should ensure that they comply with the Acas code. He advised the hearing that he had no health issues. var googletag = googletag || {}; In 2004, after a long period of sickness absence and a long and difficult internal grievance process, Mrs McAdie’s employment was terminated by her employer on the grounds of ill health. var googletag = googletag || {}; 01454 292 069   recruit@thehrdirector.com, UK Subscriber Assistance T 01454 292 060 subs@thehrdirector.com. The definition of disability (whether endometriosis and/or depression) under the … LID Publishing talks to author Bill Cohen about his latest book on Peter Drucker’s consulting principles. They may resign, or you may have to consider dismissing them. A few days before his proposed return, he met with a doctor appointed by Occupational Health. Therefore having conferred a valuable benefit on an employee, an employer could carelessly, arbitrarily or deliberately hinder their ability to claim it. Leaving those issues aside, it is clear that weighing all of these factors against the employer’s need to manage its business results in a tricky balancing act that must be undertaken. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement. However, employers are often afraid to approach issues of ill-health pro-actively, for fear of falling foul of disability discrimination legislation and having to undertake lengthy 'risk-assessment' procedures and pay for expensive medical examinations. It may also be the case that your ill-health amounts to a disability under the Equality Act 2010. Redundancy is a form of dismissal and is fair in most cases. He had 35 years’ service when he developed a problem with his foot and took some time off work. In addition to a claim for unfair dismissal, you may have a claim under health and safety legislation. In addition where an employee is receiving or is likely to receive benefits under a permanent health insurance scheme, it would normally be considered unfair to dismiss an employee. It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. Employers should therefore bear the four principles above in mind when faced with dismissing an employee who has been absent from work for some time due to ill health. In this respect, dismissal for ill-health or injury is akin to dismissal for the employer’s operational requirements (Grogan, 2001). }); The blame of the gamePrint – Issue 162 | Article of the Week The obligation is only to take such steps as are sensible in the circumstances. Are adjustments required under the Equality Act 2010? An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. H appealed the dismissal and was assessed by an independent medical practitioner who found that H's condition could not be classified as permanent and that it would be likely that H would be able to undertake sedentary duties before October 2006. It is fair to dismiss disabled employees only when there is no prospect of their recuperating in time during which the employer can cope without suffering significant loss as a result of the employee’s absence. However, case law has established that it requires three key elements: (1) obtaining medical evidence, (2) consultation and (3) considering alternative employment. Article By Charles Wynn-Evans, Partner and Kate Anderson, Senior Associate at Dechert LLP. The Council referred him to Occupational Health advisers, but they proved to be unhelpful, and each Occupational Health report was almost identical. Should the employer wait to see if the employee qualifies for insurance before dismissing? Items 10 and 11 of the schedule provides as follows: "10: Incapacity: ill-health or injury (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. googletag.enableServices(); Terminating an employee due to ongoing illness is a difficult decision. Ill Health – If an employee’s absence from work means that he/she is unable to do their job the employer can potentially rely on this as a reason for dismissal. Following that meeting, the Council decided to dismiss. Two recent cases have dealt with two separate aspects of an employer's consideration of ill-health issues when addressing an employee's inability to perform the requirements of their job. He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). Although it’s not pleasant, sometimes when an employee’s health impacts their ability to work, you may have to consider dismissal. Unsurprisingly though, what constitutes a fair procedure for ill health dismissals is more complex than it is for, say, misconduct or redundancy. A termination of this type would only be appropriate if there is little likelihood that the employee will ever fully recuperate and be able to return to work. First appealed the decision of the Tribunal, but the Employment Appeals Tribunal dismissed the appeal, holding that: "...as a general rule, when an employee is absent through ill-health in the long-term, an employer will be expected, prior to dismissing the employee, to take reasonable steps to consult him, to ascertain by means of appropriate medical evidence the nature and prognosis for his condition, and to consider alternative employment... ...where, however, an employer provides an enhanced pension on retirement through ill-health, it seems to us that an employer will also be expected to take reasonable steps to ascertain whether the employee is entitled to the benefit of ill-health retirement...". Dismissal due to ill health: Benefits. An employer will often need to consider complex assessments of medical evidence, potentially pry into an employee’s private life, and deal with the prospect of taking someone’s livelihood away at a time in their life when they are most vulnerable. 01454 292 063   advertise@thehrdirector.com, Recruitment In June 2005 H suffered a stroke and the DVLA suspended H's driving licence for a period of 12 months. There was no discussion about obtaining a final certificate from his GP. Identifying the correct employer in tribunal claims, The EU-UK Trade and Cooperation Agreement (TCA) and the implications on business immigration, Limited Liability Partnerships: Salaried Member rules, Remain on sick pay until 20 May 2006 and then remain employed, but off-work with no entitlement to sick pay until retirement. An employee can be both fairly and lawfully dismissed, as long as the employer has a valid reason, has made any reasonable adjustments where applicable, and has followed a fair process. If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid. This is generally not the case. As a result, one of First's managers took the view that H's incapacity was permanent and that H should be dismissed for incapability. Dismissal because of a disability may be unlawful discrimination. She brought an unfair dismissal claim. Further complications, although outside the scope of this article, present themselves with permanent health insurance and disability discrimination. I’m still currently employed but my employer wants to dismiss me next month, my go said I’m classed as disabled but my employer are saying I can’t do what I’m employed to do so dismissal due to ill health is the route they will take