How long do we have to wait before we can fairly terminate an employee’s employment due to sickness absence?
Richard Whalley, employment partner at HRC Law answers…
There is no set period. It depends on what is reasonable in the circumstances. Your focus should therefore be on ensuring that you have acted reasonably: both in terms of reaching your decision and in terms of following the correct procedures (that’s what an employment tribunal will look at, if a claim is brought against you!).
With regard to your decision-making process, your reason for terminating the employment relationship will be that the employee is no longer capable of doing their job (if there are other reasons, then the termination will not be solely down to sickness absence). In order to reach your decision reasonably, you need to do certain things. We’ve created a mnemonic to help you remember these: SSTOP.
- Scrutinise your employee’s condition. Investigate and assess whether it’s likely they could return to work, and if so, when. Liaise with your employee to get an up-to-date prognosis and medical assessment. Make sure you have accurate records of their sick leave, and that you understand their condition in so far as you are able to. Be particularly alert to red flags which could indicate that your employee has a disability (disability encompasses more than you might think, potentially including stress, and dyslexia for example), or that place your employee at a disadvantage in some way (e.g. they are primary carer for a young or disabled child). Consider whether the illness is, or could be, work-related? If you suspect they could be malingering, consider whether you have any objective evidence to support this (are they always off the day after their team’s match?).
- Scrutinise your employee’s contract, employment history and role. What does the contract say about sickness? Have they been with you for a long-time? Is this an isolated illness or do they have a long history of absenteeism? Do you have other concerns about them, or about their role? How much does it cost for you to arrange cover for them? Is a permanent health insurance scheme in operation? What does their role entail?
- Talk to your employee as regularly as possible about whether they are able to return to work and what they anticipate. Put the medical evidence to them and ask for their views. You need to walk a careful line between finding out what you can, without putting your employee under undue pressure or exacerbating their illness. Bear in mind the correct procedures and policies when you are doing this: if, for example, your employee is too ill to attend a disciplinary meeting about their absence, could you instead send questions and request answers in writing?
- Options: Have you considered and, if applicable, (reasonably) discounted these? Flexible working, adjustments or adaptations to the workplace or changes to the role itself are things you may want to think about. Have you asked your employee if there is anything you could do to facilitate their return? Have you suggested a gradual return to duty; is this feasible?
- Procedures: Throughout the process, you need to follow the correct disciplinary and dismissal process – including the ACAS Code of Conduct. Make sure that you keep full records to show that you’ve done so and to evidence your decision-making process.
Finally bear in mind that your idea of what’s “fair and reasonable” may not be someone else’s. That’s why it’s great to get a second opinion. A quick chat with a specialist employment lawyer could flag issues you hadn’t factored in.
By Richard Whalley, employment partner at HRC Law.