One of the most commonly discussed issues relating to human resources and employment law during my 15 years with Ison Harrison, is this question of whether an employee can be dismissed whilst they are on sick leave. The simple answer is “yes they can”, however the employer must first go through a staged process of actions and procedures and must act fairly and reasonably at all times. It should be noted that this applies to all disciplinary procedures whilst a person is on sick leave, including those that may result in dismissal.

For an employer, having an employee on indefinite sick leave can be challenging and costly to the business. However, there are certain protocols that must be followed before dismissal can be considered. Employees have a right to be treated fairly and reasonably and to be offered certain options before a last resort is proposed and actioned.

An employee’s rights during sick leave

  • An employer must keep in contact with you throughout your illness, to ask about your welfare and to notify you of developments that affect you – such as pensions, holidays and other HR information – as if you were still at work
  • An employer must ask for your consent to obtain recent medical evidence relating to your prospects of returning to work
  • You remain an employee of the business until you return to work, unless your medical capability can be questioned

How can an employer start dismissal proceedings?

In order for an employer to start dismissal proceedings whilst you are on sick leave, they must first discuss with you any ‘reasonable adjustments’ that could be made to your job and how you do it, which will compensate for your current health and allow you to return to work. Legally, an employer only has to follow this procedure if the employee is disabled, but it has become an accepted element of the ‘fair treatment’ process.

If you feel that you cannot return to work even if reasonable adjustments have been offered, the employer should then offer you an alternative position within the business. This should be something appropriate, that you are reasonably capable and qualified to do, and is not considered discriminatory. If there is no alternative employment available, or you reject the offer of a fair and reasonable alternative position, you can be dismissed on the grounds of medical capability.

Of course this only applies in a situation where you show no signs of your health improving and returning to work within a reasonable time. This period of time can be influenced by the nature of your illness or injury, the nature of the job and the level of difficulty the employer faces in covering your absence.

What is the process leading to dismissal?

  • An employer cannot be expected to leave a position open indefinitely, but they must follow certain procedures before starting the dismissal process, such as:
  • Carrying out investigations and keeping the employee informed at all times, as above.
  • Where medical capability has been raised, the employer must then invite you to a meeting. If you physically cannot attend, this can be carried out at your home or over the phone, if all parties agree.
  • After the meeting, your employer must make consistent judgements when compared to previous scenarios and occurrences within the organisation.
  • If the decision is that your contract of employment is to be terminated whilst you are on sick leave, then you are still entitled to the notice period stated in your contract of employment, or the minimum statutory notice period, whichever is longer.
  • Where your continuous employment has been between one month and two years your minimum statutory notice
    period is one week. This is up to a maximum of 12 weeks for every year of continuous employment over two years.
  • In most cases an employer will agree to pay you an ex gratia payment to reflect your service and contribution to the business.  We regularly negotiate termination packages on behalf of employees.

If you need more advice relating to your sick leave and would like to discuss your concerns about being  dismissed whilst off sick, please contact me directly or call 0113 284 5000.

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