Wake-up call: Sacking an employee for being sick could land you in trouble

If you don't proceed with care, you may well find yourself with a disability discrimination case on your hands. Katee Dias explains

The problem
Winter is the season for coughs and colds, meaning employees often take a few days off sick here and there. But what about the employee who has been on sick leave for months? How do you deal with that?

The law
When an employee is absent on long-term sick leave, it is commonly because they suffer from a disability. For employment law purposes, this is where the individual has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. ‘Substantial' means more than minor or trivial and ‘long term' means it is likely to last for at least a year.

Disabled employees are protected by the Equality Act 2010, under which an employer has a duty to make reasonable adjustments to help them at work. Such adjustments can involve anything from building a wheelchair ramp to allowing part-time working.

If an employer wishes to end the employment relationship because the disabled employee has taken too much sick leave, they should tread carefully. Disabled employees are protected from discrimination arising from their disability. Terminating their employment due to the length of sickness absence means they are being treated unfavourably because of something arising in consequence of their disability. To avoid discriminating unlawfully, an employer must ‘objectively justify' what they do and show that dismissal is a proportionate means of achieving a legitimate end.

Employees who have been employed for two years or more are also protected from unfair dismissal. An employer needs to have a fair reason for dismissal (usually the employee will no longer be capable of performing their job) and must follow a fair dismissal procedure.

Advice
There are two main avenues when an employee is on long-term sick leave: do nothing and simply wait to see what happens; or contemplate dismissal (assuming that you have already tried to get them back to work by making any reasonable adjustments that are appropriate in the circumstances).

Waiting to see what happens can be a viable option, particularly where the employer pays only statutory sick pay as this is a relatively inexpensive route. Sometimes the employee, of their own volition, will choose to resign.

If you wish to pursue the dismissal route, the employee needs to be invited to a meeting to discuss that possibility. Explain in a letter the effect that their ongoing absence is having on the business and what their medical prognosis is. Then hold the meeting with them to discuss matters further before reaching your decision.

If you then decide to proceed with dismissal, you should give the employee notice (or payment in lieu of notice) and confirm the dismissal in writing. Give the employee the right of appeal against your decision to dismiss. And remember that dismissal in these circumstances may still result in an employment claim.

Checklist

• Is the employee disabled? Do they have a physical or mental impairment? Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? Is that effect substantial? Is it long-term?
• If they are disabled, consider what reasonable adjustments can be made.
• If you are contemplating dismissal, consider your defence to potential claims. How would you objectively justify any dismissal? How would you evidence your fair reason?
• Consider alternatives, such as permanent health insurance or ill-health retirement.
• Follow the ACAS code of practice on disciplinary and grievance procedures during any dismissal process.
• Ensure you have up-to-date medical advice. Ask a medical expert to confirm it is unlikely the employee will return to their role, even with adjustments.

Beware
There is no cap on compensation for disability discrimination. Any damages will be based on loss of earnings as well as injury to feelings. This could be expensive for an employer.

Contact
Katee Dias is senior solicitor at law firm Goodman Derrick kdias@gdlaw.co.uk