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Long term sick employee – when is it safe to dismiss?

Even if a long term sick employee is no longer entitled to sick pay, they are still clocking up paid holiday entitlement (which will not, contrary to popular belief, be ‘lost’ at the end of the holiday year) and so employers are normally keen to resolve long term sickness one way of the other. In the case of O’Brien Vs Bolton St Catherine’s Academy, the Court of Appeal felt that the employer rushed its final decision. This case teaches us some important lessons about what to do before dismissing a long term absentee.

Even if a long term sick employee is no longer entitled to sick pay, they are still clocking up paid holiday entitlement (which will not, contrary to popular belief, be ‘lost’ at the end of the holiday year) and so employers are normally keen to resolve long term sickness one way of the other. In the case of O’Brien Vs Bolton St Catherine’s Academy, the Court of Appeal felt that the employer rushed its final decision. This case teaches us some important lessons about what to do before dismissing a long term absentee.

Having been assaulted by a student, Ms O’Brien took long term sick leave – over a year at the point the employer decided to dismiss. The employer requested a medical report from her GP, her GP was unhelpful, but during the appeal against her dismissal Ms O’Brien produced a psychologist report saying that following a course of treatment she should make a full recovery. Rather than make its own investigations around the report, the Academy regarded it as unclear and contradictory and pressed ahead with the dismissal.

Having been through the first tribunal and Employment Appeal Tribunal, the Court of Appeal found that under the circumstances the employer should have waited a little longer, and ruled discrimination on grounds of a disability. The case has produced the following useful guidance for any employer contemplating the dismissal of a long term absent employee:

  • The dismissal must show that the continuing absence is having an impact on the organisation (and what that impact is), this can be written in the dismissal letter to show clearly that the employer had thought about this aspect before making the decision to dismiss
  • Up to date medical evidence must be obtained and, if normal channels (e.g. GP or Specialist) don’t work, the employer must go further e.g. instruct an Occupational Doctor to produce a report. This applies even if the employee presents evidence at the last minute and (as happened in this case) and even if that evidence appeared to be of poor quality
  • The employer must be able to show why ‘now’ is the right time to dismiss and, if more or other evidence appears to be necessary (medical evidence in this case,) allow sufficient additional time for that process to complete.

Employers should not allow long term absences to drag on for ever, they must be dealt with, but as ever, you would be wise to seek advice from your myHRdept HR advisor before taking the decision to dismiss. They will carry out a risk assessment and write all of the letters etc. and if necessary help you find a suitable occupational health service to carry out an assessment.

If you're thinking of outsourcing your HR why not contact myhrdept.co.uk. With full service Premium Plus packages from only £120 per month (and start-up packages from just £70 per month) and fixed price HR support options available for one-off issues, we believe we offer the best combination of quality and price available in the UK. Call us on 01628 820515 or Contact Us.

 

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