The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply where someone is dismissed from work purely due to ill health. There was no discussion about obtaining a final certificate from his GP. googletag.cmd = googletag.cmd || []; googletag.cmd.push(function() { The occupational health assessment and additional medical advice determined that C suffered from a psychotic illness. It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. 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. Should the employer wait to see if the employee qualifies for insurance before dismissing? 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). googletag.enableServices(); Assuming that the employer can demonstrate that capability is the reason for dismissal, it must then follow a fair procedure. Should it wait until the employee has exhausted the appeal process with the Financial Ombudsman? Termination of employment due to ill health. Dismissal due to ill health - following the disciplinary procedure. Personal Independence Payment (PIP). LID Publishing talks to author Bill Cohen about his latest book on Peter Drucker’s consulting principles. Identifying the correct employer in tribunal claims, The EU-UK Trade and Cooperation Agreement (TCA) and the implications on business immigration, Limited Liability Partnerships: Salaried Member rules, Remain on sick pay until 20 May 2006 and then remain employed, but off-work with no entitlement to sick pay until retirement. 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. C was suspended on full pay and referred to the Police Child Protection Unit. , 15 July 2019. A few days before his proposed return, he met with a doctor appointed by Occupational Health. googletag.cmd.push(function() { The School's failure to deal with the issues of discipline and ill-health separately was crucial to this case. 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. In the case of BS v Dundee City Council, BS had been off sick for 272 days with stress and depression. 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. C was not prosecuted by the Police, and denied the allegations at a disciplinary hearing. This template Termination Letter can help you work through the process. There is a need properly to consult with the employee prior to dismissal. Dismissal due to ill health: Benefits. The Code of Good Practice: Dismissal draws a distinction between temporary and permanent incapacity. Before dismissing an employee for reasons of ill health an employer should find out the current medical position. 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.. Redundancy is a form of dismissal and is fair in most cases. He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). googletag.cmd = googletag.cmd || []; (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. Dismissal because of a disability may be unlawful discrimination. The Council asked him to return to work a month later and explained that they would consider his dismissal if he did not. They may resign, or you may have to consider dismissing them. googletag.enableServices(); Buy this issue now, click here. 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. Ben Power. The employer must take steps to discover the employee’s medical condition and his likely prognosis. }); We interview Genevieve Glover, Group HR Director - Barchester Healthcare. 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. 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. The registered office is Woodwater House, Pynes Hill, Exeter, EX2 5WR. If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid. An employee's lack of capability to do their job due to ill health is a potentially fair reason for dismissal. 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. 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. This is generally not the case. 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. googletag.pubads().enableSingleRequest(); 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. If he says that he will be able to return to work in the near future, it works in his favour. 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. googletag.cmd = googletag.cmd || []; calling If, however, the employee’s incapacity is likely to be per… 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. 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. 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. 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 employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. Five ways to help teams beat the January blues. 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. He advised the hearing that he had no health issues. This means employers can dismiss someone for sickness without following the process recommended in … The Council referred him to Occupational Health advisers, but they proved to be unhelpful, and each Occupational Health report was almost identical. Prior to a second hearing, C's Union suggested that C's case might be treated as one of illness rather than discipline. 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. The definition of disability (whether endometriosis and/or depression) under the … Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement. 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. It found that the employer was responsible for the breakdown in her mental health as a result of mishandling her grievance, and so “no reasonable employer would have dismis… 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. 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. 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. (4)        Finally, the employer should address the question of length of service in every case. The difficulty that arises is how to address the issue. 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. 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 charge was later dropped, but led to him separating from his wife and being signed off work with depression and anxiety. In addition to a claim for unfair dismissal, you may have a claim under health and safety legislation. 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. 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. As a result, one of First's managers took the view that H's incapacity was permanent and that H should be dismissed for incapability. Unsurprisingly though, what constitutes a fair procedure for ill health dismissals is more complex than it is for, say, misconduct or redundancy. 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. 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. And cover topics including: Trends for 2021, The Skills Gap, Virtual Collaboration & Rise of Employee Autonomy. The Court of Session decided to remit the case back to the same tribunal to consider those four issues. The employee is dismissed after 30 months due to ill health and his entitlement to all sick pay has been used up. 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 There are laws regarding termination of employment for employees suffering with ill health. This article will highlight the aspects surrounding termination of employment based on ill health and injury. Dismissals due to illness Sometimes an employee may have to stop working because of long-term ill health. His appeal against the decision was unsuccessful. This decision provides a useful summary of how Employment Tribunals should approach ill health dismissals in accordance with the current EAT case law. A list of the members (all of whom are His contractual notice at 1 month is more than 1 week longer than this, so the employee is not entitled to be paid. However, this only requires the employer to obtain proper medical evidence and to ensure that the correct questions are asked and answered. (3)        Attached too much weight to the importance of obtaining a further medical opinion. 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. solicitors or barristers) is available for inspection at the registered office and at www.michelmores.com. 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. It is not unusual for an Employer to be required to deal with Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. googletag.defineSlot('/21798641100/Sidebar1', [[300, 250], [300, 600]], 'div-gpt-ad-1552319515893-0').addService(googletag.pubads()); 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. googletag.enableServices(); 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. Under their contract of employment they are entitled to receive four weeks' notice. The referral of C to an occupational health advisor had created the reasonable expectation that the disciplinary process should be suspended pending the outcome of the assessment - an approach that should be followed by all employers. 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, he did not return to work on the planned date and at his next meeting with the Council said that he did not feel any better or further forward since the last meeting. This will usually involve obtaining with the employee’s consent a report from the employees GP or consultant. 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. googletag.pubads().enableSingleRequest(); 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. 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. 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.. It usually means the same as being sacked or fired. The Employment Tribunal found that the dismissal was unfair due to a number of defects with the procedure. Further complications, although outside the scope of this article, present themselves with permanent health insurance and disability discrimination. 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. Fairness in Dealing with Lack of Capability due to 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. 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. 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. 01454 292063   advertise@thehrdirector.com, Online During his absence, he was signed off sick by his GP and the occupational health assessment services for eight weeks at a time. Will Covid-19 level playing field for disabled workforce? 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. Although it’s not pleasant, sometimes when an employee’s health impacts their ability to work, you may have to consider dismissal. 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. So when will a dismissal for ill health be fair? He was given the opportunity to appeal against this decision but chose not to. Fair procedure health an employer uses a fair and reasonable procedure to decide whether to.! 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