The issue of dismissing an employee who is absent on long term illness has always been a thorny one for employers (EAT*) provides some guidance for employers in navigating this tricky terrain.

The claimant had been out of work following a road traffic accident (RTA) for approximately 18 months. During this period, his employer tried on a number of occasions to meet him to ascertain when he might be able to return to work. The respondent had been given no medical details of his condition beyond post RTA and, therefore, had no information on his medical condition. Eventually, after a year of absence, a medical report was provided, however it didn't deal in any meaningful way with what occupational impact the injuries might have. Further it didn't give any basis upon which the claimant could reasonably refuse to meet his employer. The EAT noted that the employer was entitled to ask for further information before considering whether an independent medical review was required.

The case is useful as it illustrates the circumstances in which an employer may succeed in dismissing an employee on grounds of capability. The EAT held that it is not sufficient in long term absence cases for an employee merely to periodically furnish vague medical certificates and expect an employer to be satisfied.

Where an employee is on long term sick leave, it is not unreasonable for an employer to seek to ascertain the nature and extent of any injury or illness or to ascertain the likely length of any absence. Obviously, in doing so the employer must act reasonably toward his employee and, in this case, the EAT was of the view that the employer had shown "patience and restraint" in the manner in which they dealt with his prolonged absence. On foot of this, it held that the dismissal was "fundamentally" fair. The obligation for an employee who is out on long term sick leave to properly engage with the respondent was also a feature of another EAT decision this year in which the EAT also held that the respondent had acted as a reasonable employer would have acted having regard to all the circumstances.

The Unfair Dismissals Acts provide that the dismissal of an employee shall not be deemed to be an unfair dismissal if it results"wholly or mainly from the capability, competence or qualifications of the employee to perform work of the kind which he was employed by the employer to do". Employees can be dismissed for lack of capability due to illness and, in this regard, there is a need to distinguish between the two types of illness (i) long term illness and (ii) persistent, frequent short term absences. Persistent regular short term illness may give rise to a misconduct issue as opposed to a capability issue as often there is no underlying medical condition governing this particular pattern of absence.

In relation to a long term illness, this may qualify as a disability and as such the unfair dismissals legislation cannot be looked at in isolation. An employer may have obligations under the Employment Equality Acts, mainly to make reasonable accommodation in order to assist the person with a disability in returning to work.

Key takeaways

When an employee has been out on long term absence and dismissal is a possibility, an employer should ensure that the following has been considered:

  1. The employee's attendance record has been fairly reviewed;  
  2. Obtain an up to date medical opinion in relation to the employee's condition and their possible future availability for work. This may require specialist opinion and / or safety / occupational reports. If referring an employee to an employer's own company doctor or specialist ensure that fair procedures are followed in any such referral. An employer should ensure that it does not seek to influence the opinion of any doctor as fair procedures govern what information is supplied to a doctor and what happens at the referral.  
  3. Consider whether any reasonable accommodation can be made for the employee. This has been held to include vocational assessments and the hiring of a professional job coach. If however no suitable alternative vacancy exists, an employer is not obliged to provide alternative or light work.  
  4. The employee concerned must be allowed the full opportunity to participate at each stage of the employer's enquiry and be able to present relevant medical evidence. It is important to keep the employee informed at all stages of the process to enable them to participate fully.  
  5. The employee has been given fair warnings that dismissal is likely if there is no likelihood of a return to work within a reasonable period;  
  6. The employee has been given the right to appeal any decision made.

The above provides some guidance on the factors to be taken into account in dismissing someone who is absent on long term illness. Ultimately however each case will be determined on its own facts and evidence as to whether as it will constitute a fair dismissal on grounds of capability.