dismissal due to ill health

The employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. Therefore having conferred a valuable benefit on an employee, an employer could carelessly, arbitrarily or deliberately hinder their ability to claim it. googletag.defineSlot('/21798641100/ArticleAd', [300, 250], 'div-gpt-ad-1553701159481-0').addService(googletag.pubads()); The Council referred him to Occupational Health advisers, but they proved to be unhelpful, and each Occupational Health report was almost identical. Dismissing an employee due to ill health is anything but straightforward. This case therefore serves as a reminder to employers that when dealing with employees on long-term sick leave, they should ensure that appropriate medical advice is obtained on all medical issues, including qualification for retirement on grounds of ill-health. Ben Power. He was given the opportunity to appeal against this decision but chose not to. googletag.cmd.push(function() { 01454 292 069   recruit@thehrdirector.com, UK Subscriber Assistance T 01454 292 060 subs@thehrdirector.com. When he next met with the Council, he told them he was taking sleeping tablets and antidepressants, and could not envisage returning to work whilst on medication. Understanding dismissal for incapacity due to ill health Incapacity is the inherent inability of an employee to perform work according to the employer's established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. 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. C was employed as a teacher in a School. During his absence, he was signed off sick by his GP and the occupational health assessment services for eight weeks at a time. For example, if an employee's illness threatens the health of co-workers or customers, such as in the case of a food preparer who has contracted tuberculosis, an employer may be justified in terminating an ailing employee due to illness. googletag.enableServices(); Some absences which are unjustified e.g. Should the employer wait to see if the employee qualifies for insurance before dismissing? An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. This led to a disciplinary meeting and, although the disciplinary charges were later dropped, the resulting humiliation led to a significant setback in his recovery. It is a common misconception that dismissal due to ill health is automatically unfair or unlawful. googletag.pubads().enableSingleRequest(); Are adjustments required under the Equality Act 2010? The dismissal of employees on long-term sickness absence can put an employer at risk of a claim for unfair dismissal and/or disability discrimination. 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. 01454 292 063   advertise@thehrdirector.com, Recruitment The crucial question is whether any reasonable employer would have waited longer before dismissing the employee. Dismissal because of a disability may be unlawful discrimination. It is not unusual for an Employer to be required to deal with One of the forms a fair reason … var googletag = googletag || {}; After six months’ absence, the Council found out that he had been charged with a criminal offence and suspected that was the reason for his absence. This article will highlight the aspects surrounding termination of employment based on ill health and injury. Redundancy. 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. A few days before his proposed return, he met with a doctor appointed by Occupational Health. C was suspended on full pay and referred to the Police Child Protection Unit. Dismissal due to capability may also include instances where the employer dismisses because the employee is no longer capable of doing the job they were employed to do because of illness.. However, this only requires the employer to obtain proper medical evidence and to ensure that the correct questions are asked and answered. 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. googletag.pubads().enableSingleRequest(); 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. OC326242. 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. Ill health retirement options. On one hand, a serious matter should be dealt with in accordance with the disciplinary procedure of the employer, but equally, the employer often does not wish to be seen to be dealing in a harsh manner with an employee who is obviously unwell. }); The blame of the gamePrint – Issue 162 | Article of the Week LID Publishing talks to author Bill Cohen about his latest book on Peter Drucker’s consulting principles. Before dismissing an employee for reasons of ill health an employer should find out the current medical position. 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. googletag.defineSlot('/21798641100/Sidebar2', [[300, 250], [300, 600]], 'div-gpt-ad-1552319564911-0').addService(googletag.pubads()); 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. 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. There is a balancing act to be performed between the ability of the employer to wait, for example, because they could obtain temporary labour and because the employee has exhausted contractual sick pay, and the unsatisfactory state of affairs for an employer (and the costs associated with) having an employee on long-term sick leave. However, case law has established that it requires three key elements: (1) obtaining medical evidence, (2) consultation and (3) considering alternative employment. 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. The previous Labour Appeal Court held that the substantive fairness of a dismissal based on incapacity due to ill-health, depends on the question whether the employee can fairly be expected to continue in the employment relationship, bearing in mind the interests of the … There is a need properly to consult with the employee prior to dismissal. The Tribunal held that C's dismissal had been unfair, there had been insufficient regard for C's suspected illness when determining whether or not to discipline / dismiss C, and that there had been ample time to have referred C to occupational health. If he says that he is no better and does not know when he will be able to return, it works against him. We should therefore be grateful for the recent decision of the Scottish Court of Session in BS v Dundee City Council (2013) CSIH 91 which although not, strictly speaking, binding on Employment Tribunals in England and Wales, provides some very welcome guidance in relation to this difficult exercise. If, however, the employee’s incapacity is likely to be per… ARTICLE BY: Viola Lloyd | Published: 12 April 2018. var googletag = googletag || {}; Clarification has been given on how employers should handle an employee dismissal following an extended period of absence due to ill-health.. googletag.pubads().enableSingleRequest(); The Court of Session decided to remit the case back to the same tribunal to consider those four issues. googletag.cmd = googletag.cmd || []; The registered office is Woodwater House, Pynes Hill, Exeter, EX2 5WR. }); Publication var googletag = googletag || {}; 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? googletag.enableServices(); This means employers can dismiss someone for sickness without following the process recommended in … The absence can be prolonged or intermittent but frequent. 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. }); We interview Genevieve Glover, Group HR Director - Barchester Healthcare. (4)        Should have considered whether the employee’s length of service was relevant. Universal Credit. 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. The occupational health assessment and additional medical advice determined that C suffered from a psychotic illness. Five ways to help teams beat the January blues. googletag.enableServices(); 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. This week, the Employment Appeal Tribunal (EAT) served a useful reminder of how the handling of a dismissal on grounds of ill-health capability may give rise to valid claims for disability discrimination. 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. 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. The referral of C to an occupational health advisor had created the reasonable expectation that the disciplinary process should be suspended pending the outcome of the assessment - an approach that should be followed by all employers. In addition to a claim for unfair dismissal, you may have a claim under health and safety legislation. His appeal against the decision was unsuccessful. Unsurprisingly though, what constitutes a fair procedure for ill health dismissals is more complex than it is for, say, misconduct or redundancy. Dismissals due to illness Sometimes an employee may have to stop working because of long-term ill health. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. Occasionally an employee may have to leave your employment because of long-term ill health.Sometimes the employee will simply choose to resign. Dismissal due to ill health: Benefits. However, he did not return to work on the planned date and at his next meeting with the Council said that he did not feel any better or further forward since the last meeting. 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...". 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. 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 The School then referred C to an occupational health assessment, and at the same time wrote to C dismissing him on grounds of gross misconduct. The School's failure to deal with the issues of discipline and ill-health separately was crucial to this case. So when will a dismissal for ill health be fair? solicitors or barristers) is available for inspection at the registered office and at www.michelmores.com. Meanwhile, employee B has been employed for two years when they are dismissed due to long-term ill health. In the case of BS v Dundee City Council, BS had been off sick for 272 days with stress and depression. Compensation uplift: Acas code of practice does not apply to ill-health dismissal involving no culpable conduct Date: 24 September 2016. This can either work for or against the employee. There are laws regarding termination of employment for employees suffering with ill health. Prior to a second hearing, C's Union suggested that C's case might be treated as one of illness rather than discipline. He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. 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. This is generally not the case. 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. She brought an unfair dismissal claim. 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. 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. Termination of employment due to ill health. Even where the Acas code does not apply, employers shou… This decision provides a useful summary of how Employment Tribunals should approach ill health dismissals in accordance with the current EAT case law. Redundancy is a form of dismissal and is fair in most cases. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement. If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid. Buy this issue now, click here. Under their contract of employment they are entitled to receive four weeks' notice. incapacity due to an employee’s ill-health or injury For a dismissal to be fair, you must prove that you had a fair reason to dismiss. An employment tribunal upheld her claim. Further complications, although outside the scope of this article, present themselves with permanent health insurance and disability discrimination. First's occupational health advisor was of the opinion that H might be well enough to undertake alternative duties as of June 2006, but that H may not be able to drive at that time. calling The Court of Session found that the Employment Tribunal’s decision was lacking in four material respects – the tribunal: (1)        Did not expressly address the question of whether the employer could be expected to wait longer before dismissing. Although it’s not pleasant, sometimes when an employee’s health impacts their ability to work, you may have to consider dismissal. Most employee benefits including ESA are now covered under Universal Credit. In this respect, dismissal for ill-health or injury is akin to dismissal for the employer’s operational requirements (Grogan, 2001). It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. 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: 01454 292063   advertise@thehrdirector.com, Online This template Termination Letter can help you work through the process. If he says that he will be able to return to work in the near future, it works in his favour. (2)        Did not give adequate weight to the employee’s own view about his ability to return to work, which should have been weighed against the doctor’s opinion. After a complaint had been submitted by a student in April 2005 an investigation suggested that C had played pornography on an overhead projector, had made inappropriate sexual remarks to students and had told students that he consorted with prostitutes, had been overtaken by aliens, and that terrorists were plotting to kill him. There was no discussion about obtaining a final certificate from his GP. The Court of Session in BS v Dundee City Council has provided some guidance on this issue. 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. His contractual notice at 1 month is more than 1 week longer than this, so the employee is not entitled to be paid. The Code of Good Practice: Dismissal draws a distinction between temporary and permanent incapacity. 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. Confirmation of dismissal. In June 2005 H suffered a stroke and the DVLA suspended H's driving licence for a period of 12 months. In this case the Tribunal identified that the "single feature" that drove it to the conclusion that the dismissal was unfair was the apparent wish of the employer to avoid the possibility of incurring the cost of providing an ill-health retirement pension. Dismissing an employee due to ill health is anything but straightforward. It concluded that the doctor’s opinion (that he would be fit to return within one to three months) was conditional upon his GP certifying him as fit to return, but that he himself gave no indication that he might return. (3)        Attached too much weight to the importance of obtaining a further medical opinion. The charge was later dropped, but led to him separating from his wife and being signed off work with depression and anxiety. 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. 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. Will Covid-19 level playing field for disabled workforce? He advised the hearing that he had no health issues. Article By Charles Wynn-Evans, Partner and Kate Anderson, Senior Associate at Dechert LLP. Assuming that the employer can demonstrate that capability is the reason for dismissal, it must then follow a fair procedure.

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