It can be tricky dismissing an employee who is off work for illness and if you get it wrong you can have a claim on your hands. Here, Jayne Harrison, a partner at Cleggs Solicitors looks at the five common mistakes that employers make and how to avoid them.
Not taking action
Many employers think they do not need to do anything when they have an employee off ill. For example, it may be that an employer does not complete return to work interviews when
an employee is off ill to understand the reason for absence and possible adjustments. It could also be that employees can languish on sick leave for a number of years. Employees accrue holiday while they are on long term sick so there is a cost to an employer if they do not do anything with an employee on long term sick.
The level of contact
Employers are often worried about contacting employees when they are off sick. Employers are able to contact employees when they are off sick and indeed have an obligation to do so. In fact if an employer did not make contact then the perception from an employee may be that the employer is not bothered about their health. An employer cannot avoid this obligation by saying that the employee never contacted them. However, an employer does have to be careful about excessive contact as it would be inappropriate to bombard an employee with telephone calls and/or letters.
Failing to realise the problem
Not understanding the value of medical evidence. In order to ensure that a dismissal is fair an employer will need to show what reasonable steps have been taken to discover the employee’s medical condition and likely prognosis. It is difficult to envisage a case where an employer will not have some level of consultation with a doctor. Employees cannot be compelled to undergo medical examination or submit to disclosure of medical records unless they have agreed to it in the employment contract and if they refuse to consent the employer will not be criticised provided that it has attempted to obtain medical advice.
A lack of clarity
Employers need to be clear with instructions to medical experts so that the medical report answers the specific questions about the specific employee. If there is an inadequate report employers need to go back to the expert. Employers also need to be aware that depending on the illness they may need a specialist rather than a GP report. A tribunal may consider that it was unreasonable to limit investigations to a medical expert who does not specialise in the relevant field. Further, a GP’s report may not contain a clear prognosis and an employer may be criticised if it dismisses on the basis of an unclear prognosis.
Not giving warnings
Employers need to ensure that they warn the employee that dismissal could be contemplated if they do not return to work and ensure that they meet with an employee before they dismiss. In order to form a view on the likelihood of the employees return to work the employer must make reasonable enquiries. This means that the employee should be consulted fully so as to establish the reason for the absence and employee’s view of when he/she is likely to return to work. The employee should be made aware that the employer is contemplating dismissal if the employee does not return to work. This is not so much a disciplinary warning as giving the employee full notice of the potential outcome if his/her health does not improve.
