There was no discussion about obtaining a final certificate from his GP. googletag.cmd.push(function() { The employee is dismissed after 30 months due to ill health and his entitlement to all sick pay has been used up. It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. Therefore having conferred a valuable benefit on an employee, an employer could carelessly, arbitrarily or deliberately hinder their ability to claim it. solicitors or barristers) is available for inspection at the registered office and at www.michelmores.com. 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. There are laws regarding termination of employment for employees suffering with ill health. Ill health retirement options. 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. Redundancy. 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. They may resign, or you may have to consider dismissing them. 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. Universal Credit. 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. However, this only requires the employer to obtain proper medical evidence and to ensure that the correct questions are asked and answered. ARTICLE BY: Viola Lloyd | Published: 12 April 2018. var googletag = googletag || {}; 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: 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. 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. 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. The Employment Tribunal found that the dismissal was unfair due to a number of defects with the procedure. The registered office is Woodwater House, Pynes Hill, Exeter, EX2 5WR. So when will a dismissal for ill health be fair? googletag.pubads().enableSingleRequest(); In this case, the circumstances which led to the employee’s dismissal tell a sad tale. It may also be the case that your ill-health amounts to a disability under the Equality Act 2010. Ill Health Incapacity In the previous articles, focus was placed on dismissal for misconduct and more specifically the procedural and substantive fairness required for such dismissals. 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. 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...". var googletag = googletag || {}; It is a common misconception that dismissal due to ill health is automatically unfair or unlawful. Will Covid-19 level playing field for disabled workforce? 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. 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. Ben Power. This is generally not the case. Some absences which are unjustified e.g. googletag.cmd.push(function() { Dismissal because of a disability may be unlawful discrimination. 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. His contractual notice at 1 month is more than 1 week longer than this, so the employee is not entitled to be paid. 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. 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. Prior to a second hearing, C's Union suggested that C's case might be treated as one of illness rather than discipline. 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. OC326242. 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. 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 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. , 15 July 2019. googletag.pubads().enableSingleRequest(); I am writing to confirm that, following the meeting held on [DATE], it was decided that your employment with [NAME OF EMPLOYER] should be terminated on grounds of ill-health. Should it wait until the employee has exhausted the appeal process with the Financial Ombudsman? The occupational health assessment and additional medical advice determined that C suffered from a psychotic illness. The obligation is only to take such steps as are sensible in the circumstances. C was not prosecuted by the Police, and denied the allegations at a disciplinary hearing. Further complications, although outside the scope of this article, present themselves with permanent health insurance and disability discrimination. 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. googletag.enableServices(); A dismissal is when an employer ends an employee's contract. The Court of Session found that the Employment Tribunal’s decision was lacking in four material respects – the tribunal: (1)        Did not expressly address the question of whether the employer could be expected to wait longer before dismissing. This will usually involve obtaining with the employee’s consent a report from the employees GP or consultant. Meanwhile, employee B has been employed for two years when they are dismissed due to long-term ill health. The Council referred him to Occupational Health advisers, but they proved to be unhelpful, and each Occupational Health report was almost identical. Termination of employment due to ill health. 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. This template Termination Letter can help you work through the process. 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. 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? The School then referred C to an occupational health assessment, and at the same time wrote to C dismissing him on grounds of gross misconduct. Redundancy is a form of dismissal and is fair in most cases. googletag.pubads().enableSingleRequest(); The difficulty that arises is how to address the issue. © Michelmores LLP is a Limited Liability Partnership, authorised and regulated by the Solicitors Regulation Authority and registered in England and Wales under Partnership No. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. Compensation uplift: Acas code of practice does not apply to ill-health dismissal involving no culpable conduct Date: 24 September 2016. During his absence, he was signed off sick by his GP and the occupational health assessment services for eight weeks at a time. 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. 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. The previous Labour Appeal Court held that the substantive fairness of a dismissal based on incapacity due to ill-health, depends on the question whether the employee can fairly be expected to continue in the employment relationship, bearing in mind the interests of the … LID Publishing talks to author Bill Cohen about his latest book on Peter Drucker’s consulting principles. 2: No reasonable employer would have dismissed the employee only nine days after receiving the indication from Occupational Health that he would be fit to return to work in one to three months. Apart from Statutory Sick Pay (SSP) when capability dismissal is due to ill health, other benefits include: Employment and Support Allowance (ESA). 01454 292 069   recruit@thehrdirector.com, UK Subscriber Assistance T 01454 292 060 subs@thehrdirector.com. The Court of Session in BS v Dundee City Council has provided some guidance on this issue. 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. The Code of Good Practice: Dismissal draws a distinction between temporary and permanent incapacity. googletag.cmd = googletag.cmd || []; googletag.cmd.push(function() { 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 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.. He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). Dismissing an employee due to ill health is anything but straightforward. }); The blame of the gamePrint – Issue 162 | Article of the Week Personal Independence Payment (PIP). 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. Dismissal due to ill health - following the disciplinary procedure. 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. This article will highlight the aspects surrounding termination of employment based on ill health and injury. The charge was later dropped, but led to him separating from his wife and being signed off work with depression and anxiety. However, case law has established that it requires three key elements: (1) obtaining medical evidence, (2) consultation and (3) considering alternative employment. One of the forms a fair reason … Although it’s not pleasant, sometimes when an employee’s health impacts their ability to work, you may have to consider dismissal. 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. A list of the members (all of whom are The definition of disability (whether endometriosis and/or depression) under the … (4)        Finally, the employer should address the question of length of service in every case. The employer must take steps to discover the employee’s medical condition and his likely prognosis. If an employee’s illness or injury is only temporary and likely to be of short duration, no dismissal is possible for that reason alone. (3)        Attached too much weight to the importance of obtaining a further medical opinion. Five ways to help teams beat the January blues. Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. 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. Should the employer wait to see if the employee qualifies for insurance before dismissing? Before dismissing an employee for reasons of ill health an employer should find out the current medical position. 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. The Council asked him to return to work a month later and explained that they would consider his dismissal if he did not. }); We interview Genevieve Glover, Group HR Director - Barchester Healthcare. Buy this issue now, click here. Most employee benefits including ESA are now covered under Universal Credit. An employment tribunal upheld her claim. Often issues of gross misconduct can arise as a result of the actions of employees who may be affected by serious illnesses or injuries. Even where the Acas code does not apply, employers shou… 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. Dismissals due to illness Sometimes an employee may have to stop working because of long-term ill health. 01454 292 063   advertise@thehrdirector.com, Recruitment Terminating an employee due to ongoing illness is a difficult decision. C was suspended on full pay and referred to the Police Child Protection Unit. Receive more HR related news and content with our monthly Enewsletter (Ebrief). googletag.enableServices(); (4)        Should have considered whether the employee’s length of service was relevant. (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. googletag.defineSlot('/21798641100/ArticleAd', [300, 250], 'div-gpt-ad-1553701159481-0').addService(googletag.pubads()); Dismissing an employee due to ill health is anything but straightforward. Increased mortality must shape wellbeing and benefits decisions in 2021, Firms underestimating importance of benefits in these challenging times, Employers warned not to force employees to take COVID-19 vaccine, Employers reveal top skills required for 2021. If he says that he will be able to return to work in the near future, it works in his favour. 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