It is a commonly held belief that an employee cannot dismiss a member of staff who is off sick and receiving statutory sick pay (SSP). This is not true. However, businesses must assess each situation carefully as there are other issues related to dismissing an employee who is off sick. We set out the relevant factors below:
You cannot dismiss an employee solely to avoid having to pay SSP. Therefore the dismissal should be on the grounds of their absence and not because you have to pay SSP. In particular it is not advisable to tell an employee you are dismissing them but that you will take them back on when they are well enough to work – it must be a permanent decision.
Factors to consider therefore will be the length of service the employee has and also the anticipated length of the absence.
An employee who has less than two years’ service cannot bring a claim for unfair dismissal where they have been dismissed due to absence from work. However, if they can establish that they were absent due to having a disability then they may be able to bring a claim for disability discrimination for which their length of employment is irrelevant.
Obviously not all health issues amount to a disability but care should be taken where you are aware the employee has a potentially serious health conditions. A disability is defined for the purposes of employment law as a physical or mental impairment which has a long term significant adverse affect on a person’s ability to carry out normal day to day activities.
It is not possible to list all possible disabilities but it should be noted that cancer and multiple sclerosis are automatically considered to be disabilities. Other common health issues which can amount to a disability include persistent muscular or skeletal issues including back problems and mobility issues, depression and anxiety, and dyslexia and other learning difficulties. What is important is not to make assumptions once you are aware the employee has a potentially long term health issue.
An employee who has more than two years’ service has the right to bring a claim for unfair dismissal. Therefore if you dismiss such an employee when they are off sick and in receipt of SSP you will need to be able to justify the dismissal.
Normally you will be considering dismissal on the grounds of ill health and capability and therefore you will need to consider how long the employee will be off for, whether or not they are likely to be able to return to work and if not have you got any alternative work available. You will also be expected to have gone through a fair process which will include discussing the matter with the employee, obtaining medical information and evidence as to their capability and investigating alternatives to dismissal.
However, sometimes an employee will go off sick to avoid disciplinary proceedings. You are permitted to continue with these but will need to take account of the absence by making alternative arrangements for meetings (e.g. dealing with the issue in writing). If the employee refuses to engage with the process full stop you may then be justified in making a decision in their absence.
If you have any queries relating to SSP, absence management, disability discrimination and dismissal proceedings please do not hesitate to contact us.
By Guy Woodcock
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