Yes, you can consider dismissing an employee on medical grounds should their ill health mean they can no longer do the job they are contracted for. In some cases, the employee will resign, but there are some instances where it is necessary that you may need to consider dismissal on medical grounds.
However, medical capability dismissal should be considered as a last resort. There is a formal process before deciding that the employee should be dismissed from work on medical grounds. You, as a compliant employer, should, in the first instance, attempt to have a welfare meeting to gather as much information about the employee’s condition as possible to avoid an unfair dismissal for being sick. The information you will need will include how long the condition is likely to last and when they consider they may fit enough to return to work.
Following that, you would be expected to: –
- With consent from the employee, obtain a medical report from their GP and/or organise an occupational health assessment to be carried out on them.
- Should it be likely that the employee is considered as having a disability recognised by the Equality Act 2010, you would also be required to make any reasonable adjustments in their position, namely to prevent any disadvantages from hindering their performance.
- Suppose there are no reasonable adjustments available for them, and they are not likely to return to work anytime soon. In that case, the employee should be invited to a formal medical capability hearing to discuss the available facts and information.
Reasonable Adjustments Instead Of Dismissal Due To Sickness
Suppose an employee is disadvantaged by something specifically because of their disability, and it is realistic/reasonable to make the changes within the workplace. In that case, they will expect to do so instead of dismissing an employee for sickness.
The definition of what is reasonable can vary and will depend on: –
- The disability of the employee
- The resources available to the employer (large employer vs small business)
- How practicable the changes would be
- If the adjustment overcomes the disadvantage created by the disability
- If the adjustment is more than necessary or what is needed to overcome the disadvantage
NB Not only are your employees covered under reasonable adjustments, agency workers similarly have the right to ask employers to be making reasonable adjustments, along with those who simply have applied for a role within your organisation.
Equality Act 2010 & Unfair Dismissal For Sickness
There are three things the Equality Act 2010 states that you may have to do to remove any barriers employees may face as a result of their disability and avoid any unfair dismissal for sickness claims:
- Take reasonable steps in making physical changes to your office premises/employee workspace.
- Change the employee’s workplace routine/role – for example, offer them flexible working if possible to make performing work easier.
- Provide extra aids or support – for example, offer them support for tasks or additional training suited to their particular circumstances.
If The Problem Persists, Can My Employee Be Dismissed From Work On Medical Grounds?
A few things need to be determined before an employee can be dismissed from work on medical grounds. You will need to prove that either no further reasonable adjustments or no adjustment could be made at all. It may be fair for you to move to dismissal on capability medical grounds, even if they are disabled. Following the correct procedure ensures you treat the employee with sensitivity, act fairly and reasonably, and avoid any possible unfair dismissal on medical grounds claims.
Dismissal due to sickness from work FAQs
Is dismissing an employee on sick leave legal?
Yes, dismissing an employee on sick leave is legal if you follow the proper guidelines before getting to the stage of a medical dismissal from work. You must consider several stages as the employer to comply with regulations. The Equality Act 2010 must be adhered to, obtaining an occupational health assessment and making reasonable workplace adjustments that would allow the employee to return to work or even alternative employment. Once all these procedures get completed, you may move to a medical dismissal from work. To ensure that, as the employer, you don’t face any claims of unfair dismissal on medical grounds, be sure to follow all legal procedures and consult with HR.
How long do I wait before sacking an employee on sick leave?
There is no set time in the UK before sacking an employee on sick leave becomes legal. As an employer, you must have substantial reasons, follow the correct procedure in your company’s sickness absence policy, and allow the employee adequate time to recover from their sickness before moving to a long-term sick leave dismissal. With each employee and illness, the timeframe for recovery will be different. But suppose the employee is either unable to return to work and carry out the duties they were employed to do or is unable to return to the workplace in what is considered a reasonable amount of time. In that case, you can move to a sick leave dismissal with any claims for unfair dismissal for being sick being likely unsuccessful.
Do I have to pay an employee that is being dismissed on medical grounds?
You do need to be sure that all legal procedures have been carried out correctly when an employee gets dismissed on medical grounds. Suppose the employee claims unfair dismissal on medical grounds, and it is found that you, as the employer, didn’t make all reasonable adjustments allowing the employee a return to work. In that case, a claim for unfair dismissal could be successful. Currently, a cap of £89,493 is set on compensation, so it is something all employers want to avoid and following a fair process is a must. Speaking to HR experts is highly advisable to avoid any claim of unfair dismissal due to sickness.
As a small business, is dismissing an employee for sickness easy?
If they have worked for your company for more than two years, dismissing an employee for sickness is more complicated. Suppose you feel the absent employee can no longer carry out their duties because of their sickness absence. In that case, you may be able to dismiss them as long as their illness is not considered a disability under the Equality Act. You will need to follow a fair procedure, have the correct documentation and medical evidence support, and show that you made reasonable adjustments in the case of the employee’s disability so that you do not face a claim of disability discrimination and possibly employment tribunal.