He had been absent from work for over a year, the decision to dismiss had been deferred on five previous occasions, and they could not wait any longer. In addition where an employee is receiving or is likely to receive benefits under a permanent health insurance scheme, it would normally be considered unfair to dismiss an employee. 01454 292 063   advertise@thehrdirector.com, Recruitment Following that meeting, the Council decided to dismiss. The obligation is only to take such steps as are sensible in the circumstances. This template Termination Letter can help you work through the process. H appealed the dismissal and was assessed by an independent medical practitioner who found that H's condition could not be classified as permanent and that it would be likely that H would be able to undertake sedentary duties before October 2006. Clarification has been given on how employers should handle an employee dismissal following an extended period of absence due to ill-health.. Some absences which are unjustified e.g. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement. First offered H two choices: H submitted a claim to the Employment Tribunal which criticised First's insufficient consideration of the medical evidence at each stage of the procedure, particularly the availability of ill-health retirement. He advised the hearing that he had no health issues. The Tribunal held that C's dismissal had been unfair, there had been insufficient regard for C's suspected illness when determining whether or not to discipline / dismiss C, and that there had been ample time to have referred C to occupational health. Termination of employment due to ill health. This can either work for or against the employee. googletag.cmd.push(function() { LID Publishing talks to author Bill Cohen about his latest book on Peter Drucker’s consulting principles. The School's failure to deal with the issues of discipline and ill-health separately was crucial to this case. (3)        Attached too much weight to the importance of obtaining a further medical opinion. var googletag = googletag || {}; This is generally not the case. There is a balancing act to be performed between the ability of the employer to wait, for example, because they could obtain temporary labour and because the employee has exhausted contractual sick pay, and the unsatisfactory state of affairs for an employer (and the costs associated with) having an employee on long-term sick leave. Under their contract of employment they are entitled to receive four weeks' notice. He was given the opportunity to appeal against this decision but chose not to. incapacity due to an employee’s ill-health or injury For a dismissal to be fair, you must prove that you had a fair reason to dismiss. Confirmation of dismissal. Prior to a second hearing, C's Union suggested that C's case might be treated as one of illness rather than discipline. var googletag = googletag || {}; googletag.pubads().enableSingleRequest(); Fairness in Dealing with Lack of Capability due to Ill Health. Should the employer wait to see if the employee qualifies for insurance before dismissing? I’m still currently employed but my employer wants to dismiss me next month, my go said I’m classed as disabled but my employer are saying I can’t do what I’m employed to do so dismissal due to ill health is the route they will take }); We interview Genevieve Glover, Group HR Director - Barchester Healthcare. C was employed as a teacher in a School. The EAT’s decision confirms that employers that dismiss on the ground of ill health, where there is no misconduct or culpable poor performance, are not bound to follow the Acas code. It is a common misconception that dismissal due to ill health is automatically unfair or unlawful. And cover topics including: Trends for 2021, The Skills Gap, Virtual Collaboration & Rise of Employee Autonomy. The employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. The employer must take steps to discover the employee’s medical condition and his likely prognosis. He had 35 years’ service when he developed a problem with his foot and took some time off work. She brought an unfair dismissal claim. The School then referred C to an occupational health assessment, and at the same time wrote to C dismissing him on grounds of gross misconduct. The process is normally instigated by the employer when an employee has been absent for a long period, or periods, due to ill health and is unlikely to return to work.. Dismissing an employee due to ill health is anything but straightforward. In 2004, after a long period of sickness absence and a long and difficult internal grievance process, Mrs McAdie’s employment was terminated by her employer on the grounds of ill health. The Court of Session found that the Employment Tribunal’s decision was lacking in four material respects – the tribunal: (1)        Did not expressly address the question of whether the employer could be expected to wait longer before dismissing. This means employers can dismiss someone for sickness without following the process recommended in … 01454 292063   advertise@thehrdirector.com, Online However, case law has established that it requires three key elements: (1) obtaining medical evidence, (2) consultation and (3) considering alternative employment. It concluded that the doctor’s opinion (that he would be fit to return within one to three months) was conditional upon his GP certifying him as fit to return, but that he himself gave no indication that he might return. , 15 July 2019. There was no discussion about obtaining a final certificate from his GP. Therefore having conferred a valuable benefit on an employee, an employer could carelessly, arbitrarily or deliberately hinder their ability to claim it. Redundancy. googletag.defineSlot('/21798641100/Sidebar1', [[300, 250], [300, 600]], 'div-gpt-ad-1552319515893-0').addService(googletag.pubads()); When he next met with the Council, he told them he was taking sleeping tablets and antidepressants, and could not envisage returning to work whilst on medication. One of the forms a fair reason … Most employee benefits including ESA are now covered under Universal Credit. This case therefore serves as a reminder to employers that when dealing with employees on long-term sick leave, they should ensure that appropriate medical advice is obtained on all medical issues, including qualification for retirement on grounds of ill-health. H then had a second stroke in October 2005. After six months’ absence, the Council found out that he had been charged with a criminal offence and suspected that was the reason for his absence. A dismissal is when an employer ends an employee's contract. We should therefore be grateful for the recent decision of the Scottish Court of Session in BS v Dundee City Council (2013) CSIH 91 which although not, strictly speaking, binding on Employment Tribunals in England and Wales, provides some very welcome guidance in relation to this difficult exercise. If, however, the employee’s incapacity is likely to be per… googletag.pubads().enableSingleRequest(); Terminating an employee due to ongoing illness is a difficult decision. It is not unusual for an Employer to be required to deal with Dismissals due to illness Sometimes an employee may have to stop working because of long-term ill health. googletag.enableServices(); In this case, the circumstances which led to the employee’s dismissal tell a sad tale. He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). Can an employer discipline an employee where they refuse to follow a management request in the course of carrying out a trade union action? 01454 292 069   recruit@thehrdirector.com, UK Subscriber Assistance T 01454 292 060 subs@thehrdirector.com. His contractual notice at 1 month is more than 1 week longer than this, so the employee is not entitled to be paid. The Court of Session in BS v Dundee City Council has provided some guidance on this issue. In this respect, dismissal for ill-health or injury is akin to dismissal for the employer’s operational requirements (Grogan, 2001). The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply where someone is dismissed from work purely due to ill health. Increased mortality must shape wellbeing and benefits decisions in 2021, Firms underestimating importance of benefits in these challenging times, Employers warned not to force employees to take COVID-19 vaccine, Employers reveal top skills required for 2021. First's occupational health advisor was of the opinion that H might be well enough to undertake alternative duties as of June 2006, but that H may not be able to drive at that time. OC326242. A few days before his proposed return, he met with a doctor appointed by Occupational Health. Whilst absent, he was charged with a criminal offence following a complaint made about him by a woman with whom he was having an affair. Receive more HR related news and content with our monthly Enewsletter (Ebrief). googletag.enableServices(); An employee can be both fairly and lawfully dismissed, as long as the employer has a valid reason, has made any reasonable adjustments where applicable, and has followed a fair process. In this case the Tribunal identified that the "single feature" that drove it to the conclusion that the dismissal was unfair was the apparent wish of the employer to avoid the possibility of incurring the cost of providing an ill-health retirement pension. Dismissing an employee due to ill health is anything but straightforward. The absence can be prolonged or intermittent but frequent. Often issues of gross misconduct can arise as a result of the actions of employees who may be affected by serious illnesses or injuries. How the right reward can be a great morale booster, Workplace mental Health requires board level accountability, How to beat the back-to-work and lockdown blues, Performance management in 2021 and what we learnt in 2020, TALENT INTELLIGENCE IN A COMPETITIVE WORLD – Roundtable Report, 139 employers named and shamed for failing to pay minimum wage, One Bright Idea to Help Charities Recover from the Annus Horribilis of 2020. (2)        Did not give adequate weight to the employee’s own view about his ability to return to work, which should have been weighed against the doctor’s opinion. googletag.cmd = googletag.cmd || []; Dismissal due to ill health - following the disciplinary procedure. In June 2005 H suffered a stroke and the DVLA suspended H's driving licence for a period of 12 months. }); Publication H worked as a bus driver for First West Yorkshire ('First'), and as a benefit of his employment was entitled to 26 weeks full pay, followed by 26 weeks half pay when off work due to illness, and a pension scheme permitting retirement on grounds of ill-health if the employee were deemed to be permanently incapable of efficiently discharging his duties. Dismissal due to ill health: Benefits. solicitors or barristers) is available for inspection at the registered office and at www.michelmores.com. Ill health retirement options. ARTICLE BY: Viola Lloyd | Published: 12 April 2018. var googletag = googletag || {}; An employer will often need to consider complex assessments of medical evidence, potentially pry into an employee’s private life, and deal with the prospect of taking someone’s livelihood away at a time in their life when they are most vulnerable. In addition to a claim for unfair dismissal, you may have a claim under health and safety legislation. This article will highlight the aspects surrounding termination of employment based on ill health and injury. calling It usually means the same as being sacked or fired. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. The definition of disability (whether endometriosis and/or depression) under the … Before dismissing an employee for reasons of ill health an employer should find out the current medical position. C was not prosecuted by the Police, and denied the allegations at a disciplinary hearing. However, employers are often afraid to approach issues of ill-health pro-actively, for fear of falling foul of disability discrimination legislation and having to undertake lengthy 'risk-assessment' procedures and pay for expensive medical examinations. Employers should therefore bear the four principles above in mind when faced with dismissing an employee who has been absent from work for some time due to ill health. The Court of Session summarised the four main principles relating to the fairness of ill health dismissals as follows: It is essential to consider the question of whether the employer could be expected to wait longer before dismissing. A list of the members (all of whom are His appeal against the decision was unsuccessful. Ben Power. It found that the employer was responsible for the breakdown in her mental health as a result of mishandling her grievance, and so “no reasonable employer would have dismis… After a complaint had been submitted by a student in April 2005 an investigation suggested that C had played pornography on an overhead projector, had made inappropriate sexual remarks to students and had told students that he consorted with prostitutes, had been overtaken by aliens, and that terrorists were plotting to kill him. If an employee’s illness or injury is only temporary and likely to be of short duration, no dismissal is possible for that reason alone. Apart from Statutory Sick Pay (SSP) when capability dismissal is due to ill health, other benefits include: Employment and Support Allowance (ESA). Assuming that the employer can demonstrate that capability is the reason for dismissal, it must then follow a fair procedure. Meanwhile, employee B has been employed for two years when they are dismissed due to long-term ill health. As for reasonableness, a number of factors should be taken into account, including the employee’s length of service, the effect of their absence on the workforce, the requirement for the role to be performed, the likelihood of the employee being able to return to work and the nature of their illness. Buy this issue now, click here. If he says that he is no better and does not know when he will be able to return, it works against him. It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. It is fair to dismiss disabled employees only when there is no prospect of their recuperating in time during which the employer can cope without suffering significant loss as a result of the employee’s absence. The EAT has provided a useful summary of the law in relation to ill-health capability dismissals and there are points for employers to bear in mind when deciding whether to dismiss: Dismissal due to capability may also include instances where the employer dismisses because the employee is no longer capable of doing the job they were employed to do because of illness.. So when will a dismissal for ill health be fair? I am writing to confirm that, following the meeting held on [DATE], it was decided that your employment with [NAME OF EMPLOYER] should be terminated on grounds of ill-health. First appealed the decision of the Tribunal, but the Employment Appeals Tribunal dismissed the appeal, holding that: "...as a general rule, when an employee is absent through ill-health in the long-term, an employer will be expected, prior to dismissing the employee, to take reasonable steps to consult him, to ascertain by means of appropriate medical evidence the nature and prognosis for his condition, and to consider alternative employment... ...where, however, an employer provides an enhanced pension on retirement through ill-health, it seems to us that an employer will also be expected to take reasonable steps to ascertain whether the employee is entitled to the benefit of ill-health retirement...". 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