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dismissal due to ill health

Dismissal due to ill health - following the disciplinary procedure. It is a common misconception that dismissal due to ill health is automatically unfair or unlawful. 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. Therefore having conferred a valuable benefit on an employee, an employer could carelessly, arbitrarily or deliberately hinder their ability to claim it. The registered office is Woodwater House, Pynes Hill, Exeter, EX2 5WR. The Code of Good Practice: Dismissal draws a distinction between temporary and permanent incapacity. In June 2005 H suffered a stroke and the DVLA suspended H's driving licence for a period of 12 months. In Holmes v Qinetiq Ltd [2016] IRLR 664 EAT, the EAT held the "Acas code of practice on disciplinary and grievance procedures" has no application where an employer does not allege culpable conduct by an employee. 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. Should it wait until the employee has exhausted the appeal process with the Financial Ombudsman? The absence can be prolonged or intermittent but frequent. googletag.pubads().enableSingleRequest(); Dismissals due to illness Sometimes an employee may have to stop working because of long-term ill health. googletag.cmd.push(function() { 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. C was not prosecuted by the Police, and denied the allegations at a disciplinary hearing. It may also be the case that your ill-health amounts to a disability under the Equality Act 2010. So when will a dismissal for ill health be fair? Will Covid-19 level playing field for disabled workforce? Some absences which are unjustified e.g. 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. Dismissal due to ill health - a recent Employment Appeal Tribunal (EAT) decision has helpfully clarified the question of whether or not an employer should follow their disciplinary procedure when dismissing an employee on the grounds of ill health. © Michelmores LLP is a Limited Liability Partnership, authorised and regulated by the Solicitors Regulation Authority and registered in England and Wales under Partnership No. The employer must take steps to discover the employee’s medical condition and his likely prognosis. The difficulty that arises is how to address the issue. 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. It is not unusual for an Employer to be required to deal with H then had a second stroke in October 2005. Assuming that the employer can demonstrate that capability is the reason for dismissal, it must then follow a fair procedure. 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. 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. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. This means employers can dismiss someone for sickness without following the process recommended in … Ill Health – If an employee’s absence from work means that he/she is unable to do their job the employer can potentially rely on this as a reason for dismissal. On one hand, a serious matter should be dealt with in accordance with the disciplinary procedure of the employer, but equally, the employer often does not wish to be seen to be dealing in a harsh manner with an employee who is obviously unwell. Following that meeting, the Council decided to dismiss. }); We interview Genevieve Glover, Group HR Director - Barchester Healthcare. This article will highlight the aspects surrounding termination of employment based on ill health and injury. He was given the opportunity to appeal against this decision but chose not to. The Council referred him to Occupational Health advisers, but they proved to be unhelpful, and each Occupational Health report was almost identical. Apart from Statutory Sick Pay (SSP) when capability dismissal is due to ill health, other benefits include: Employment and Support Allowance (ESA). A list of the members (all of whom are googletag.cmd.push(function() { C was suspended on full pay and referred to the Police Child Protection Unit. 3: In the absence of any medical evidence, there were no reasonable grounds for the Council’s belief that he employee was unlikely to return to work in the foreseeable future. Receive more HR related news and content with our monthly Enewsletter (Ebrief). 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. The Court of Session decided to remit the case back to the same tribunal to consider those four issues. They may resign, or you may have to consider dismissing them. C was employed as a teacher in a School. The definition of disability (whether endometriosis and/or depression) under the … Key to its conclusions were the following findings: 1: The reliance of the Council on the “perfunctory” reports of Occupational Health was not within the range of ways in which a reasonable employer might have informed itself. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement. This template Termination Letter can help you work through the process. (4)        Finally, the employer should address the question of length of service in every case. This will usually involve obtaining with the employee’s consent a report from the employees GP or consultant. 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. 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. She brought an unfair dismissal claim. Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. Compensation uplift: Acas code of practice does not apply to ill-health dismissal involving no culpable conduct Date: 24 September 2016. That is whether length of service, and the manner in which the employee worked during that period, indicates that he is likely to take steps to return to work as soon as he can. Clarification has been given on how employers should handle an employee dismissal following an extended period of absence due to ill-health.. During his absence, he was signed off sick by his GP and the occupational health assessment services for eight weeks at a time. Dismissing an employee due to ill health is anything but straightforward. His appeal against the decision was unsuccessful. Summary: When is it reasonable to dismiss an employee who has been absent from work due to ill-health for an extended period of time? This week, the Employment Appeal Tribunal (EAT) served a useful reminder of how the handling of a dismissal on grounds of ill-health capability may give rise to valid claims for disability discrimination. }); Publication This can either work for or against the employee. If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid. In addition to a claim for unfair dismissal, you may have a claim under health and safety legislation. Article By Charles Wynn-Evans, Partner and Kate Anderson, Senior Associate at Dechert LLP. 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. Ill health retirement options. var googletag = googletag || {}; 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. Before dismissing an employee for reasons of ill health an employer should find out the current medical position. Occasionally an employee may have to leave your employment because of long-term ill health.Sometimes the employee will simply choose to resign. If he says that he will be able to return to work in the near future, it works in his favour. The employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. Ben Power. And cover topics including: Trends for 2021, The Skills Gap, Virtual Collaboration & Rise of Employee Autonomy. The reason for the EAT decision is based on the considerable injustice that might occur if an employer dismissed a sick employee who might be entitled to a retirement pension, without having considered that option. Dismissing an employee due to ill health is anything but straightforward. If you are considering terminating an employee’s contract on the grounds of ill health, it is important to follow a fair and reasonable procedure for someone who is on long term sick. Five ways to help teams beat the January blues. 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. 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...". 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. Are adjustments required under the Equality Act 2010? ARTICLE BY: Viola Lloyd | Published: 12 April 2018. var googletag = googletag || {}; He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). 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. An employment tribunal upheld her claim. It's important that an employer uses a fair and reasonable procedure to decide whether to dismiss someone. Understanding dismissal for incapacity due to ill health Incapacity is the inherent inability of an employee to perform work according to the employer's established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. 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. googletag.pubads().enableSingleRequest(); Redundancy is a form of dismissal and is fair in most cases. 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. 01454 292063   advertise@thehrdirector.com, Online Two recent cases have dealt with two separate aspects of an employer's consideration of ill-health issues when addressing an employee's inability to perform the requirements of their job. The employee is dismissed after 30 months due to ill health and his entitlement to all sick pay has been used up. Fairness in Dealing with Lack of Capability due to Ill Health. googletag.cmd = googletag.cmd || []; googletag.cmd.push(function() { 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. However, if an ill health dismissal does involve some element of misconduct or poor performance that would otherwise lead to disciplinary action, for example, a failure to follow sickness absence procedures, employers should ensure that they comply with the Acas code. One of the forms a fair reason … 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. There is a need properly to consult with the employee prior to dismissal. The doctor concluded that his health was improving, he was not a candidate for ill-health retirement and he should be able to return to work within one to three months (although this was subject to his GP signing him off as fit for work). }); The blame of the gamePrint – Issue 162 | Article of the Week (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. 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. Redundancy. solicitors or barristers) is available for inspection at the registered office and at www.michelmores.com. Can an employer discipline an employee where they refuse to follow a management request in the course of carrying out a trade union action? Often issues of gross misconduct can arise as a result of the actions of employees who may be affected by serious illnesses or injuries. In the case of BS v Dundee City Council, BS had been off sick for 272 days with stress and depression. Dismissal due to ill health: Benefits. var googletag = googletag || {}; The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply where someone is dismissed from work purely due to ill health. googletag.cmd = googletag.cmd || []; If he says that he is no better and does not know when he will be able to return, it works against him. Although it’s not pleasant, sometimes when an employee’s health impacts their ability to work, you may have to consider dismissal. A dismissal is when an employer ends an employee's contract. 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. 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. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. Leaving those issues aside, it is clear that weighing all of these factors against the employer’s need to manage its business results in a tricky balancing act that must be undertaken. 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. Prior to a second hearing, C's Union suggested that C's case might be treated as one of illness rather than discipline. googletag.cmd = googletag.cmd || []; Unsurprisingly though, what constitutes a fair procedure for ill health dismissals is more complex than it is for, say, misconduct or redundancy. The obligation is only to take such steps as are sensible in the circumstances. 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. calling 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. The School's failure to deal with the issues of discipline and ill-health separately was crucial to this case. Buy this issue now, click here. This led to a disciplinary meeting and, although the disciplinary charges were later dropped, the resulting humiliation led to a significant setback in his recovery. Items 10 and 11 of the schedule provides as follows: "10: Incapacity: ill-health or injury (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. googletag.enableServices(); Should the employer wait to see if the employee qualifies for insurance before dismissing? , 15 July 2019. A few days before his proposed return, he met with a doctor appointed by Occupational Health. If, however, the employee’s incapacity is likely to be per… googletag.pubads().enableSingleRequest(); Termination of employment due to ill health. 4: Since there was an inconsistency between the medical advice and the employee’s own understanding of his medical condition, no reasonable employer would ignore the advice and dismiss an employee with 35 years’ service without first clarifying the true medical position. The crucial question is whether any reasonable employer would have waited longer before dismissing the employee. 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.. googletag.defineSlot('/21798641100/ArticleAd', [300, 250], 'div-gpt-ad-1553701159481-0').addService(googletag.pubads()); There are laws regarding termination of employment for employees suffering with ill health. 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. 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: (3)        Attached too much weight to the importance of obtaining a further medical opinion. OC326242. For example, if an employee's illness threatens the health of co-workers or customers, such as in the case of a food preparer who has contracted tuberculosis, an employer may be justified in terminating an ailing employee due to illness. You must ensure there are justifiable reasons and that you have explored every avenue prior to getting to the stage of dismissal due to ill health. 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 Universal Credit. 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. There was no discussion about obtaining a final certificate from his GP. 01454 292 063   advertise@thehrdirector.com, Recruitment He advised the hearing that he had no health issues. Further complications, although outside the scope of this article, present themselves with permanent health insurance and disability discrimination. 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.. googletag.enableServices(); The charge was later dropped, but led to him separating from his wife and being signed off work with depression and anxiety. 01454 292 069   recruit@thehrdirector.com, UK Subscriber Assistance T 01454 292 060 subs@thehrdirector.com. 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. Of long-term ill health.Sometimes the employee is dismissed after 30 months due to health! 3 ) dismissal due to ill health too much weight to the employee prior to a hearing... Distinction between temporary and permanent incapacity the allegations at a time on an employee 's lack capability! Dismissals in accordance with the Financial Ombudsman questions are asked and dismissal due to ill health had a hearing. The Financial Ombudsman health advisers, but they proved to be unhelpful, and each Occupational advisers! 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