Our popular series of myth busters exposes some of the most common employment law myths and explains the reality behind them.
This month we look at whether employers can dismiss if their employee is genuinely ill.
Employers cannot dismiss if their employee is genuinely ill.
Many employers are nervous of dismissing staff who are genuinely ill, even if they have been off sick for a very long time. This can be for a number of reasons – compassion for the individual’s situation, culture of the organisation or fear of the legal and financial consequences. There is a commonly held belief that you can’t sack someone who is genuinely ill. This is a myth and in reality, provided certain safeguards are in place, genuinely ill employees can be dismissed.
The first question to ask is ‘what is the reason for dismissal’? If it is a genuine redundancy situation or there’s been gross misconduct, for example, an employer may need to adapt its procedure to accommodate the sick employee, but can go ahead and dismiss. Employees on long term sick don’t get ‘special protection’ in those circumstances.
You have to be a little more careful if the reason for dismissal is linked to the ill-health, eg, because the employee’s absence level is unacceptable. In that case, the first thing to check is whether there is an income protection or permanent health insurance (“PHI”) scheme in place. If there is, the employee should be encouraged to make a claim on the policy – dismissing them for capability / health reasons and depriving them of the right to make a claim could be very costly.
If there is no PHI or the employee doesn’t qualify for payments, then an employer can move to dismiss. Before doing so it will need to get medical advice as to when and if the employee can return, and whether any adjustments could be made to enable them to do so. Consideration should be given to making reasonable adjustments to support the employee, including the possibility of a transfer to another role. As with any dismissal, a fair procedure will also need to be followed.