Sickness Absence and Capability Process

If a worker is incapable of performing the tasks required of them because of ill health, the employer needs to handle the situation sensitively. If the worker has a disability, the employer can’t treat them less favourably on the basis of this, however if a worker is unable to perform their duties, and the employer has made reasonable adjustments to remove any disadvantages, it may be fair to dismiss them.

An employer should consider all options before implementing a capability dismissal on the grounds of ill health, including:

• Getting a medical report from the worker’s GP;
• Arranging an occupational health assessment;
• Making reasonable adjustments if possible;
• Allowing sufficient time to see whether the worker’s health improves;
• Giving all available support.

In terms of the practical steps to take, these would be influenced by the discussions that have already taken place with those workers in terms of their condition, returning to work, adjustments etc, and to what extent, if any, enquiries been made in terms of obtaining medical evidence in relation to their condition, and if so, what has this established.

Depending upon the length of service involved, and irrespective of the nature of the condition, an individual may qualify to pursue an unfair dismissal claim if their employment was terminated without a fair process having been followed, whilst depending upon the nature and impact of their condition, a failure to follow a fair process and make all reasonable efforts to investigate their absence, consider any reasonable adjustments, and facilitate their return to work could open the organisation up to a disability discrimination claim.

Short Term Sickness Absence

In cases of repetitive, intermittent, short term absences, the employee should be:

• told what improvement in attendance is expected; and
• warned of the likely consequences if this does not happen

In order to show that absence is regarded as a serious matter and may result in dismissal, it is very important that persistent absence is dealt with promptly, firmly and consistently;

Once a problem is identified and a calendar or log of absences has been created, an employer should take the following steps:

• obtain the individual’s explanation for each absence (e.g. by conducting a ‘return to work’ interview after each absence);
• start a series of warnings;
• look out for improvement in attendance;
• consider whether medical evidence should be obtained

An employer should weigh up the following factors if it is considering dismissing an employee for short-term intermittent absence:

• the nature of the illness;
• the likelihood of it recurring, or of some other illness arising;
• the length of the various absences and the periods of good health between them;
• the need for the employer to have the work done;
• the impact of the absences on those who work for the employer;
• the adoption and carrying out of the employer’s policy;
• the emphasis of a personal assessment in the ultimate decision, and the extent to which the difficulty of the situation and the position of the employer have been explained to the individual

It will usually be fair to proceed to dismissal once:

• the employer’s procedure has reached the final written warning stage;
• the individual has not met the required attendance levels;
• there are no disability, pregnancy/maternity or mental health/stress issues;
• the employer has considered whether it should, as an alternative to dismissal, extend the duration of the final written warning;
• the employer has considered whether it is appropriate to obtain medical evidence

Long-term Sickness Absence

Employer’s should ensure each period of absence and the reason for it is properly and accurately recorded, whether the absence is one long, continuous period or whether there are long periods of absence but also short attempts to return to work. The employer should keep an eye out for absences of a different nature (e.g. holiday, paternity leave, parental leave) and ensure they are properly distinguished;

Once a problem is identified, and a clear record of the absence(s) has been created, an employer should typically take the following steps:

• consultation with the employee;
• making allowances where absence is the employer’s fault;
• medical investigation;
• occupational health assessment;
• consider disability issues;
• consider alternative employment;
• consider early retirement under the pension scheme (if there is one);
• consider the permanent health insurance (PHI) scheme (if there is one);
• when to dismiss;
• the procedure for dismissal;

Consultation will involve discussions with the employee throughout the illness or absence, providing an opportunity to keep each side informed and ensuring the employee is aware of the point at which dismissal may be considered.

Employers need to be alert to medical evidence which suggests that the individual’s health may, in fact, be improving and that they may be back to work in the relatively near future, or there are outstanding procedures/investigations/medical operations which will provide further information in the near future. An employer may be expected to await the outcome of these before proceeding.

Depending upon the steps that have already been taken to date, the following would be the ordinary course of action to take, being mindful of the organisation’s existing sickness/capability procedure, which should be followed to the extent this is possible (consideration should also be given to any previous approach taken, to avoid accusations of inconsistency):

• Invite the individual to an informal meeting (in person or remotely) to discuss their absence, which as a responsible employer would be the appropriate course of action in any event.  This will provide the opportunity to identify the current position regarding the individuals health, their own intentions in terms of returning to work, and may highlight any work-related issues that are contributing to their condition and inability to return to work; 
• Depending upon the length of absence to date, it would be reasonable at this stage to state that you would like to obtain further information from the individual’s GP or applicable medical practitioner, and confirm the meeting will be re-convened upon receipt of the medical evidence;
• The purpose of obtaining the medical evidence would be to identify if a timescale for the individual’s return to work can be provided, whether there are any recommendations for any reasonable adjustments to facilitate a return to work, and whether the condition is defined as a disability;
• The individual should be provided with a consent form / letter requesting consent, and the GP or other medical practitioner should then be approached in this regard;
• Following receipt of the GP’s report, this will allow the original informal meeting to be re-convened to discuss the terms of the medical evidence obtained, consider any reasonable adjustments and/or any recommendations made (including whether any measures can be taken to assist the individual in returning to work) and take the individuals own views on the situation at that stage; 
• Depending upon the nature of the medical evidence and the extent to which an informed opinion can be formed as to how to proceed with any adjustments, or putting in place measures to enable a return to work, consideration could be given to a referral to occupational health (the referral can be made externally if there is no facility within the organisation);
• If it is not possible to put in place a Return to Work programme, for example because the medical advice is that the individual will not be fit to return to work and/or there are no reasonable adjustments that can be made, or that it will be some considerable time before the individual is able to return to work, or if a Return to Work programme is unsuccessful, a further formal meeting should be held, which the individual would have the right to be accompanied at;
• At this meeting with the individual a summary of the options available (such as alternative employment or revised terms and conditions) would be provided along with the timescale for considering these options;
• If none of the options are available, and there is otherwise no improvement in the situation within a reasonable period, an employer may have no option but to consider the termination of the individual’s employment on capability grounds, a decision that the employee would have the right to appeal against; 
• Dismissal should be a last resort after exhausting other efforts, including consideration of reasonable adjustments such as flexible working hours, remote working or issuing alternative responsibilities;
• Before deciding the point at which the absence needs to be addressed and whether dismissal is an option, the employer should consider:

• • the length of the absence;

• • the nature of the illness;
  • length of service;
  • likelihood of reoccurring absences due to ill health;

• • the employee’s job and whether it can be, or is already being, covered by someone else;
  • when the employee might be expected to return; and
  • the nature of the employer’s business organisation’s sickness policy

• The size of the employer is likely to be relevant, as a small employer may be less able to cope with a long absence than a larger one, which may be able to reallocate staff to cover the absent employee more easily.

Entitlements

In terms of entitlements once a decision has been made to dismiss on capability grounds, the individual will be entitled to receive their contractual or statutory notice i.e. a weeks’ notice for every full years continuous service (whichever is greater). There would be no additional statutory entitlements unless there was any contractual payments due, and there would not, for example, be a redundancy payment due, as this is not redundancy situation.

If there is eligibility for a medical retirement pension scheme or other compensatory scheme whereby medical retirement was the basis for dismissal, this would normally be independent of the employers obligations.

For further advice on how to implement and follow a capability policy please do not hesitate to contact the team.