Incapacity Dismissals

With legislation on the way that allows for an employee to accrue annual leave while on sick leave, the necessity for employers to manage such employees is essential. Employers considering dismissing an employee who is on sick leave must be mindful of a potential claim for discriminatory dismissal, unfair dismissal and/or breach of contract.

Employee Dismissal

An employer should first be able to justify why the business now needs to undertake such a dismissal. They should also follow a thorough procedure before they can fairly dismiss an employee on the ground of incapacity. In these situations, an employer should:

  • be in possession of all material facts concerning the employee’s condition give fair notice to the employee that the question of his/her dismissal for incapacity is being considered
  • allow the employee to put forward his/her input before the employer makes a decision.

Medical Report

An employer should seek a medical report from an independently appointed doctor to ascertain the employee’s incapacity, the prognosis and likely duration of the illness. The employer’s sick leave policy should specify the employer’s right to get an employee medically assessed by a doctor appointed by the employer, and that the employee consents to the medical report from such assessment being furnished to his or her employer.

The employee should be given a copy of the medical report to allow him and his medical advisers an opportunity to consider it. If the employer receives a contradictory medical report, they can either furnish it to the doctor who did the medical examination on behalf of the employer for his view, or seek a further medical opinion from a different doctor, which may involve a specialist. An employer should not take on the role of a medical expert by assessing the illness.

The employer should ask their appointed doctor not only to address the employee’s incapacity and expected return to work date, but also to include in the report what steps or measures are required to accommodate the employee’s return to work.

The employer must then assess such suggested measures and ascertain whether or not they are feasible, and whether or not they amount to a disproportionate financial burden on the employer.

The Employment Equality Act requires employers to take ‘effective and practical measures’ where needed so long as it does not impose a disproportionate burden on the employer’s financial resources.

Examples of such measures include the adaption of the premises and equipment, patterns of working time and distribution of tasks, or the provision of training and integration of resources. It does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.

The employee should be informed in writing at an early stage that dismissal on the basis of incapacity is being considered. Once all the medical information has been gathered, the employee should be requested to attend a meeting with the employer together with a witness or representative, and should be informed in advance that the purpose of the meeting is to discuss whether or not the employment will be terminated on the basis of the employee’s incapacity.

Written Notice

The employee should be asked for their input in relation to the medical reports and measures to enable their return to work. The employer should take time to consider the employee’s input and, if appropriate, issue the employee with a written notice of dismissal, in accordance with the employee’s contract of employment.

The employer should also provide for a right of appeal against the decision of dismissal.

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