How Long Can Employees Be On Sick Leave Before Dismissal?

If your employee has frequent sickness absences due to long-term ill health, you may wonder if dismissal is the right approach. There isn’t, however, a magic number of days an employee can be on sick leave before dismissal. It’s very much up to you, as a business, to decide what’s right here. Whilst you may […]

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If your employee has frequent sickness absences due to long-term ill health, you may wonder if dismissal is the right approach. There isn’t, however, a magic number of days an employee can be on sick leave before dismissal. It’s very much up to you, as a business, to decide what’s right here. Whilst you may indeed have grounds for lawful dismissal if employee absence and long-term sickness are damaging your business productivity (specifically due to your employee’s inability to fulfil the requirements of their job role), certain criteria will need to be met to dismiss an employee due to sick leave legally.

In sum, the following must be true to dismiss an employee for their absence:

• the dismissal must be fair (as set out by the UK Government’s Fair Dismissal criteria)
• a thorough investigation must have taken place before disciplinary procedures (considering the medical needs of the employee and any reasonable adjustments that may be made to their role to help them return to work in the first instance)
• your business’ sickness absence policy must be clear and readily available for ALL employees
• the employee’s absence can not be due to illness or disabilities that are protected under the Equality Act 2010 (formerly the Disability Discrimination Act 1995)
• a full disciplinary meeting making clear the disciplinary action that may take place must be carried out

Knowing both your employees and your legal rights as a business owner according to employment law is essential when dismissing an employee due to long-term sickness absence. Get it wrong and you could find yourself dealing with an unfair dismissal claim. Get it right, though, and you’ll be able to protect your business whilst also showing your employees the respect they deserve during what is likely an incredibly difficult time for them.

Can I Dismiss My Employee For Sickness Absence?

Yes, there are three main scenarios in which you would be right to consider employee dismissal due to illness:

All of the above are legitimate reasons to consider dismissing your employee because of their illness-related absences – but to dismiss them, you’ll need to ensure they’re treated fairly and the proper legal steps are taken whilst managing absence in the workplace.

How Do I Know If I Am Being Fair With My Employee?

Any good business owner will first and foremost be concerned with their employee’s wellbeing, so it’s only natural that you may be concerned about whether or not you’re being fair by considering dismissal for an employee due to their ill health. Ask yourself the following questions:

How Many Sick Days Have They Used?

Employees are entitled to sick leave when they are sick. There is not, however, a magic number given to employers that explicitly says how many sick days an employee should or should not be allowed in the UK – therefore there’s no answer to the question: ‘How long can I be on sick leave before dismissal’ for employees.

If, however, you feel the number of sick days being taken is unreasonable and your employee is no longer able to fulfil their job role, then you may have to consider dismissal.

How Much Sick Pay Have You Paid?

Of course, it isn’t all about the money, but if you have a generous sick leave policy at your business, then you may find yourself paying out a lot of sick pay to an employee on long-term sick.

You’ll usually be entitled to switch your employees on to statutory sick pay if they are on long-term sickness, which will provide them with a reduced rate of pay for up to 28 weeks.

Regardless, the amount of sick pay you have to pay as an employer to an employee who is unable to work can certainly impact your decision. Most employers are happy to pay employees sick pay, but if it is costing your business more money than the employee can bring your business whilst sick, you may need to consider your position.

Are They Following Your Sickness Absence Policy?

This is an especially important point. In most cases, an employee will have to present a sick note (otherwise known as a fit note) if they are sick for more than seven days. If on the eighth day, your employee doesn’t present this, then you are legally entitled to not pay them.

Most employers will also include a clause about the length of sick leave in their absence policy. This is different for each employer, but you should check yours and ensure your employees aren’t in breach of the policies they agreed to when signing their contract with you. If they are frequently breaching these conditions then disciplinary action, and later dismissal, may be your only option.

Is There A Valid Reason?

Each employer is different, so what may be a valid reason for long-term sick leave for one business owner, may be invalid for another. The point here is to use your discretion as an employer to determine if there’s a way for your employee to return to work on time. Dismissing your employee in the first instance of absence would be in incredibly poor taste. Instead, seek understanding and try to work with your employee to help them return to their job role.

With that said, if you truly feel their reasons are invalid and they’re being unreasonable with their sick leave, then dismissal may again be necessary.

What Constitutes A Fair Dismissal In The UK?

In the UK all employers are bound by UK Fair Dismissal guidance. This protects both employers and employees and also sets out an easy-to-follow framework should issues arise and employment tribunals become necessary.

The following are valid reasons for a fair dismissal in the UK:

Conduct

Does the employee act in a way that is unacceptable or inappropriate? This may relate to their behaviour in the workplace, or behaviour that brings your business into disrepute.

Capability

Is your employee able to fulfil the requirements of their role? If they are unable to perform their job role, for whatever reason (including sickness), then dismissal will usually be considered fair.

Redundancy

Does their job role still fit within the company? If their job role is no longer required due to a change of direction, then redundancy is a fair dismissal.

Legal Reason

Is there a legal reason for their dismissal? For example, an employee may commit a criminal offence that directly impacts their ability to do their job, e.g. a delivery driver losing their license.

Other Substantial Reasons

These reasons can vary, but if you can prove you carried out a thorough investigation into the matter and were unable to come up with a better alternative, then it may still be considered a fair dismissal.

Conducting A Fair Investigation

The process of a legal, fair investigation into an employee’s absence can be broken down into three main parts, and each stage must be conducted to ensure you are supporting your employee in the best way possible. The following must take place before employee absence becomes a disciplinary issue.

Fair Warning

• First, you should contact your employee after 28 days of being off sick to arrange how future contact will look between your business and them. This is a Stage 1 long-term sickness meeting.
• If possible here, you should also offer support from any in-house occupational health team that may be able to support your employee at this early stage.
• You should give fair warning if disciplinary action is likely to be taken, and also let them know your intent to obtain medical evidence.

Obtaining Medical Evidence

• Contact your employee’s GP to discuss their condition and their likelihood of returning to work soon.
• Following this, a meeting should take place to discuss your findings. This MUST be confidential and any information for the meeting must be kept securely.
• During this meeting, discuss statutory sick pay and any implications their absence may have on their holiday entitlement.

Opportunity To Respond

• At every stage your employee must be allowed to respond – this includes during quarterly Stage 2 meetings and a final 12-month review. Regular contact is key to ensuring your employees know where they’re up to and your intentions.
• Explore the different options available if it’s unlikely they’ll return to work. This could be medical retirement, early retirement, or an agreed-upon severance/voluntary redundancy package.
• If dismissal is the only option because reasonable adjustments can’t be made, then a right to appeal must be made clear.

Protecting Employees With Disabilities

Of course, no employer has the right to dismiss an employee with a disability or illness that is protected under the Equality Act 2010. Here, it is your responsibility to do everything in your power to accommodate your employees in the workplace. This may look different for each business.

If, however, you are unable to accommodate your employee due to unwillingness on their part or a complete lack of compatibility between their illness/disability and their job role, then a dismissal may be necessary still.

Other Routes Besides Dismissal

As a responsible employer, you should consider how you can support your employees during this difficult time in their lives. All of the following options should be explored before dismissal both to protect your business and support your employee as effectively as possible.

Annual Leave

Would it be possible for your employee to use some of their annual leave to support them during their illness? If the sickness is only expected to be short term but statutory sick pay isn’t enough for them, you might be able to support them by approving annual leave. This is only appropriate if suggested by your employee.

Alternative Work

It might be that your employee’s sickness will forever change their ability to do their current job role, but you might be able to find room at your business for them in another job role more suited to their new abilities.

Reasonable Adjustments

Reasonable adjustments can include anything from temporary placements in other departments, a mentor or partner on shift, a change in work conditions or duties, shortening working hours, or even allowing your employee to work remotely.

Whatever adjustments are being considered must be set out clearly to your employee in a meeting with their line managers and HR.

Phased Return To Work

A phased return to work may also be necessary, where your employee returns partially to their role, until such a time that they’re fit and able to return to work in a full-time capacity.

Summary

Before considering dismissal, you should first consider how you can support your employees If reasonable adjustments can’t be made to bring your employees back on board, then you must give them fair warning of your intention to dismiss them. At every stage, your employees must be kept in the loop, and they should have a right to respond at all times.

The key is to ensure your investigation is thorough, and that you follow each stage leading up to dismissal carefully. However, even with the best will in the world, not all employees will be able to return from long-term sickness absence.

When this happens, you should consult their GP, gather as much information about their illness as possible, and then present your reasons for dismissal clearly, allowing your employee the right to appeal. When you decide to begin the dismissal process is up to you as a business owner – there is no set rule on how long employees can be on sick leave before dismissal in the UK.

The post How Long Can Employees Be On Sick Leave Before Dismissal? appeared first on Real Business.