Having to dismiss or sack an employee isn’t a pleasant responsibility at the best of times but the prospect of letting someone go for being off sick is even worse. However, while most companies have to grapple with the ethics of sacking someone due to sickness absence, some companies also struggle with the legal aspects of the decision. In other words, if they’re actually allowed to fire someone for being off sick.
However, while some companies aren’t clear on the legality of dismissing an ill employee, their staff have even less of an idea of where they stand and what their rights are. At worst, this lack of clarity can result in a drawn-out, acrimonious parting of ways that results in employment tribunal hearings.
This post will look at what to do if you have to let an employee go for being off sick.
Can you sack / dismiss someone for being off sick?
In short, the answer is yes, you can sack an employee for being off sick. As harsh as the circumstances may be, you have a right to dismiss an employee for not fulfilling the conditions of their employment.
However, sacking an employee for sickness absence can be a bit of a legal grey area and some employees may contest the company’s decision at an employment tribunal. If that were to happen, the tribunal would assess how fair the dismissal was by looking at how well the company followed the correct procedure. The better the company follows procedure, the harder it will be for the dismissed employee to contest.
Here’s a brief outline of the procedure for dismissing an employee for sickness absence.
Have a sickness absence policy
First and foremost, you need to have terms for dealing with sickness absence written into every employment contract and as part of your absence policy. These terms will detail how your company handles dismissals for reasons related to sickness. The clearer these terms are and the better they detail the procedure leading up to an employee being let go, the harder the decision will be to contest.
Look for ways to support the employee rather than sacking them
Next, you need to look for ways to support the employee through their illness. Is there anything the company can do to aid their recovery? Or is there anything you can do help the employee carry out their work duties at home – such as helping them set up a home office? It would be unfortunate if an employee told a tribunal that they needed something to carry out their job better and you didn’t provide it – when it was within your control.
Look for alternatives duties
Before ultimately deciding to sack an employee after prolonged sickness absence, it’s crucial to look for potential alternatives to their current role. Simply put: is there another job they can do while they’re recovering from their illness?
The best way to find suitable alternatives is in conjunction with a medical expert. This needs to be done with the employee’s knowledge and permission so it doesn’t look like you’re attempting to catch them out behind their back. The medical expert will then report:
- Whether the employee is likely to recover, and if so, how long it’s likely to take
- Whether the job itself is making the employee sick and what can be done
- If they can make the switch to part-time employment – perhaps sharing the position
- If there’s another job at the company they could do instead
Using the findings of the medical expert, you can then formally review the employee’s ability to perform their job role and what decision has been made as a result. If your company were taken to an employment tribunal, they would be especially interested in this part of the procedure and if you attempted to accommodate the employee before firing them.
If, after consulting a medical practitioner, you determine that the employee’s return to work won’t be possible and you can’t find suitable, alternative employment for them, then a dismissal on the grounds of ill health is reasonable.
Keep Records
While you’re following the procedure for letting someone go, it’s important to keep impeccable records at every step of the way. This will prove, if need be, that you acted fairly before ultimately dismissing the employee.
This includes keeping a record of all discussions you had with employees about potential adjustments and alternatives. You need to note down every suggestion you made to the employee – and if they rejected them.
Also, if it comes down to having to let the employee go and they’ve been at your company for more than two years, they’re entitled to a written statement detailing the reasons for their dismissal.
