14th November 2013



 Issue No.  2013/21




According to the 2013 CIPD/Simplyhealth Absence Management Survey, levels of absence across the UK’s workforce is on the increase. After the long hard battle through the recession – and continuing for many – it will be important to make sure that any increased absenteeism does not damage employer’s ability to build on the glimmers of improvement the last few months have shown.

To help businesses therefore we provide information on how to combat absenteeism and in this (the first of two) Information Updates we cover how to deal with long term absence.  Stay tuned for the next one which will cover short term absence management.

Long-term sickness absence can be costly and will significantly increase workload on colleagues.  A frequently asked question is:  “Can an employee on long term sick be dismissed?”  We have found that there remains a belief that the answer to this is NO. Well we are happy to say - this is a myth. 

But hang on – before any gung-ho actions are taken there are some very important considerations to be had before deciding on the right employment decisions. Whilst the impact of absence on the business is great – when considering terminating someone’s employment this can not be taken lightly.

Generally speaking, dismissal on the grounds of incapability through ill health is potentially a fair reason for dismissal but,  AND HERE COMES THE WARNING, if not handled correctly the decision could be

  1. unfair if the employee has the requisite 2 years’ service to claim unfair dismissal;
  2. an act of discrimination relating to disability in breach of the Equality Act 2010 if the employee falls within the definition of being disabled; and
  3. a breach of contract if the employee has the benefit of Private Health Insurance that is provided by the Company and the policy is making payments to the employee in respect of lost earnings due to sickness, and those payments will cease upon the employment being terminated.

Each case will need to be handled differently because every situation would have different facts / circumstances. The variables to be considered are many and complex but in any capability procedure the fundamental overriding objective is for the employer to act reasonably in all the circumstances when dealing with the employee, before making any decisions regarding their continued employment. 

So how does an employer demonstrate that it has acted reasonably?

A few key features of the process you would adopt include acting reasonably by :

  • Having meaningfully discussed with the employee about the reasons for the absence
  • Exploring all options to facilitate a return to work  (e.g. phased / gradual return)
  • Considering reasonable adjustments / alternative work where the reason for absence means the person is protected by the Disability content of the Equality Act
  • Considering the medical evidence?  (Our Information Update 2013/20 covered how to obtain the required consent and the information from the employee’s GP/Specialist. But if the employee exercises their right to refuse consent, did the employer act reasonably in referring (or not referring) the employee to an Occupational Health Practitioner for a medical report?)
  • Considering the impact on any failure of health insurance benefit or the benefit private health insurance might bring
  • Taking account of the length of the employee’s absence against their past record, their length of service, the size of the company, the importance of the job performed and how difficult it is for the absence to be coped with – and of course – the need to be consistent with previous similar decisions.

Involving the employee is essential in this process as is the note taking of what is said during those meetings. If having exhausted all the alternatives available and a termination on capability grounds is decided then there are key things that need to have been said in writing to the employee both during the consultations with them and at the point the final decision is communicated. You will need to have told them in advance that the continuation of the absence is putting employment at risk and their post will not be able to be held open indefinitely. And in the final stages they will have the rights to things like being accompanied at any formal meetings where a decision to terminate employment might be taken.

Consequently, before dismissing an employee on grounds of capability (sickness or injury related) specialised advice should always be sought. This is always available to our ongoing clients with an HR support service in place and will be essential for those who also have the benefit of legal expenses insurance.  If you do not have this support and cover in place then please do feel able to contact us if you have any absence management issues affecting your business. 





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