The short answer is YES. This may sometimes be necessary for the business when your employee is on long-term sick leave. You can dismiss an employee who is on sick leave provided that you go through the correct procedures to avoid unfair dismissal claims.
Key factors to consider before dismissal
The main thing to take note of about dismissing an employee is that you must always have fair grounds for dismissal.
Before dismissing the employee, there are 3 questions to answer:
- Have you, as the employer, acted reasonably and fair? This means that you have followed fair procedures and acted fairly to all employees
- Are there any other reasonable adjustments that you, as the employer, could be done to help them to come back to work? This could include phased return to work, amended duties, altered hours or workplace adaptations.
- Are there any other positions in the company that would suit the employee?
Dismissing an employee while they are on sick leave
As mentioned above, it is possible to do so. There are two scenarios where this could arise.
Scenario One: An Offence Has Been Committed
First, an employee has committed an offence at work before they go on sick leave. For example, an employee of yours harassed another colleague and subsequently went on long-term sick leave. It is then possible to hold a disciplinary procedure with an employee while they are on sick leave. This would prevent the employee from dragging the issue whilst staying employed and getting paid.
When it comes to misconduct matters, you must follow a fair disciplinary procedure, which is to follow the company’s policies, before making any decision to dismiss. Even in serious cases like gross misconduct, the company would need to undertake a thorough investigation and disciplinary meeting where the employee can defend any allegations made against them.
Scenario Two: Recurring Health Issues
Second, is where you have an employee who is on sick leave due to recurring health issues or long-term sickness. These may be circumstances in which that employee can be dismissed. However, the employer should treat genuine absence from work as a capability issue and not a form of misconduct. As an employer, you should only think of dismissal for sickness absence as a measure of last resort.
The procedure to handle such matters is essentially the same as the above scenario where the employer carries out reasonable investigations on the employee’s condition, gives them a chance to consider alternative options to continue their employment and for the employee to rebut any medical evidence you may have. It is important that you give the employee a reasonable time to recover and consider any course of treatment before dismissing the employee.
Risks for the Employers
If you dismiss employees who are on sick leave for the reason of misconduct, the employer must ensure that there is clear and sufficient evidence to support the dismissal. The employer must also justify that dismissal falls within reasonable responses available to the employer considering any mitigating circumstances or alternative disciplinary actions. Failure to justify that the dismissal is fair and reasonable could result in unfair dismissal claims.
Equally, if the employer summarily dismissed the employee for gross misconduct without proper notice or payment in lieu of notice, there is a potential to attract a wrongful dismissal claim from the employee.
When it comes to dismissing employees for incapability reasons, it is more complex and vulnerable for the employer. If the employer fails to make reasonable adjustments in the workplace or fails to act fairly, then there is a risk of a claim for both unfair dismissal and unlawful disability discrimination. It is important to note that the onus will be on the employer as to why reasonable adjustments cannot be done.
Seeking Legal Advice
It is therefore important to seek expert legal advice if you are contemplating dismissing an employee who is on sick leave to reduce legal risks to your company. Get in touch with our employment solicitors in Northampton, Birmingham and London at info@witansolicitors.co.uk to discuss your case today.
