There are many myths surrounding employment law, some of them have firm backing to support the myth while others are simply not true and fall away as soon as it’s looked at in detail. One of the most common myths is that employees on long-term sick leave cannot be dismissed, but is this really true?
Can you be fairly dismissed on sick leave?
It’s a big worry for anyone who has been off work for a long time due to sickness, unless of course you believe the myth that you can’t be dismissed when off on sick. While there are many restrictions surrounding terminating an employee on long-term sick, there is nothing in place that completely prohibits this action from taking place.
So, in short, yes an employee can be fairly dismissed whilst on sick leave.
Why would you be dismissed?
There are a handful of things that could result in you being dismissed during long-term sick leave. This includes:
• Are you likely to get better? If there is no guarantee that you will be able to work again in the foreseeable future, then there may be grounds for dismissal on the basis that you may be incapable of returning to work.
• How long have you worked there? If you haven’t been with that employer for very long then it may not be reasonable for them to keep you on, the opposite is true if you’ve been there for a long period.
• Can your work be covered? If the employer has to hire temporary staff to cover your leave and the cost of doing so exceeds your wage then this amounts to an additional wasted cost the employer is incurring as a result of your sickness.
How can you be fairly dismissed?
Several things need to be in place for a fair dismissal to be the appropriate action to take, with every aspect of the case being thoroughly analysed to ensure it is fair.
Typically if it has come to this stage, the employer should get some medical evidence on the employee’s ability to work from their GP or an Occupational Health expert, to understand more about the employee’s condition, prognosis and how the employer can, if at all, facilitate the employee’s return to work.
Wherever possible your employer will need to try and make reasonable moves to ensure that you are supported in the return back to work. This can include provisions such as improving the workplace to support disability, change your job role to prevent further illness, allow for flexible working and giving you reasonable time to recover from your illness.
The employer is required to consult with you directly before they make the decision to dismiss you. It is unlawful and unfair to terminate your contract in any other way. If the employer makes no effort in helping you back into the workplace, or doesn’t talk to you regarding the dismissal, then it is likely that you have been unfairly dismissed, increasing your prospects of success in an employment tribunal claim.
What will a tribunal want to know?
If you do feel as though you’ve been unfairly dismissed and decide to lodge a claim within an employment tribunal, the Tribunal will check to see that your employer followed a fair procedure. They will look into various aspects of your case including:
• Did your employer carry out a reasonable investigation of your condition?
• Did the employer consult you regarding dismissal?
• Was there reasonable effort shown to explore other options?
• Were disciplinary meetings set up and attended by both parties?
Feel as though you have been unfairly dismissed? Talk to Howells Solicitors today, we are specialists in employment law and can help you claim compensation where compensation is due. Call us today on 0808 178 2773 to find out more about our service and how we can fight for your employee rights.
