Dealing with sick leave issues can be incredibly difficult for an employer. While most employers have genuine sympathy for employees suffering from ill-health, excessive absences can have a marked impact on your business’s productivity and, in turn, its profitability. At GAP HR, our expert HR consultants are regularly approached by business owners seeking answers to the question, ‘Can you sack someone on sick leave?’
The simple answer to ‘Can you sack someone on sick leave?’ is yes, as long as you do so fairly and in line with the law. However, dismissing an employee while they are on sick leave is far from straightforward, and it is crucial that you carefully consider your actions and ensure that they are lawful before you proceed.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
Can You Dismiss Someone On Sick Leave When It Is Short Term?
You cannot dismiss an employee purely because they take time off from work due to illness. However, there are certain limited situations in which you may be able to sack someone on sick leave.
For example, you may be able to sack someone on sick leave if their absence was unauthorised. An employee’s absence may be unauthorised if they fail to provide you with a fit note confirming that they were unable to work.
Another situation in which you may be able to sack someone on sick leave is when it transpires that the employee was not genuinely ill. An employee pretending to be too unwell to work when they were not may be classed as serious misconduct for which you can discipline the employee and, in some cases, dismiss them.
Can You Dismiss Someone On Sick Leave When It Is Long Term?
When an employee is off work for a long period due to a serious illness or injury, employers may find themselves in the difficult position of seeking to balance compassion with business needs.
Under employment legislation, employees with at least two years’ continuous service have the right not to be unfairly dismissed. This means that, to dismiss them lawfully, an employer must have a fair reason for the dismissal and follow a fair procedure before making the decision to sack the employee. Dismissals involving employees on long term sick leave must meet these criteria.
Examples of reasons that can be deemed ‘fair’ include capability, conduct, and redundancy. Long-term absence from work due to illness is often a capability issue. Essentially, you can sack someone on sick leave on capability grounds if their illness or injury renders them unable to carry out their role.
Before sacking someone on sick leave, you should obtain medical advice on the employee’s condition and its impact on their capability to do their job. It is also essential that you follow a fair procedure before making the decision to dismiss them.
If the employee’s health problems fall within the legal definition of a disability, you are under a duty to make what the law refers to as ‘reasonable adjustments’ to assist them in fulfilling their role. The law defines a ‘disability’ widely; it includes any physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
The ‘reasonable adjustments’ you need to make to fulfil your legal obligations towards an employee living with a disability will depend on the situation. Factors such as the nature of the employee’s health issues and the role they are employed to do will play a part in determining the measures you should put in place. Examples of some reasonable adjustments employers often make include installing assistive equipment, allowing the employee to work remotely, offering a phased return to work, changing the employee’s working hours, or temporarily reallocating certain tasks to other employees.
If, after making reasonable adjustments to facilitate the employee retuning to work, there is still no realistic prospect of them coming back, you may be justified in ending their employment on the grounds of capability.
Crucially, if you fail to make reasonable adjustments for an employee who has a disability, the affected employee may have cause to make a disability discrimination claim against you. Disability discrimination claims, if successful, can result in significant compensation awards at an Employment Tribunal.
If you need advice on sacking someone on sick leave or any other employee issue, we are on hand to help. Our HR consultants specialise in supporting SMEs throughout the UK with HR and employment law matters. We pride ourselves on offering commercially-focused advice at highly competitive rates, and we have an impressive track record of keeping our clients legally compliant and tribunal free.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
