Legal Article - Employment Law

Employee Health and Wellbeing

In the case of a long term absence, caused by an employee’s physical or mental ill health, it is vital that a medical investigation is carried out before any decision to dismiss is made. This will involve:

• Consultation with the employee as to their situation

• Consultation with the employee’s doctor or medical adviser, with the employee’s permission (see example of Medical Report Form)

• finding out the nature of the illness

• finding out what likelihood there is of the employee being able to return to their old job.

If the employee refuses to allow consultation with his doctor or medical adviser (they are under no obligation to do so), the employer must act on the evidence available.

The employee must be consulted throughout and warned if dismissal is being considered.

Having investigated and warned the employee, a decision can be made, taking into account:
• Their length of service and position in the company
• The importance of their position and whether or not it can be temporarily filled
• The effect of their absence on other employees or on the company in general
• The need for complete return to health to carry out their duties
• The possibility of alternative work e.g. lighter work.

Alternative work should be considered even if it involves a loss of pay or status. It is up to the employee to accept or reject. An employer who “assumes” such a position will be rejected puts himself at risk of an unfair dismissal finding.

The basic question in every case is whether, in all the circumstances, the employer can be expected to wait any longer for their employee’s return and, if so, how much longer. If an employee is dismissed, they are entitled to full paid notice even if his/her sickness pay entitlement has expired.

Generally the same rules apply to frequent short-term absences as to long term absence if these have the same underlying medical condition. Factors to be taken into account can include the degree of disruption caused, the nature and frequency of the absences and the effect on other employees. Medical evidence should be sought as to underlying causes. Independent evidence can be sought if malingering is suspected.

The employee must be warned that their frequent absences may lead to his/her dismissal. If, at the time of employment the employer was informed of a medical condition, a great deal more tolerance of absence will be expected.
The same rules also apply to cases of industrial ill health although an employer will be expected to be even more accommodating. If the ill health is caused by something that can be rectified by the employer, it should be so rectified unless the nature of the problem, the number of employees involved and the cost involved make it unreasonable to do so.

Where frequent short-term absences are for a variety of different reasons (whether medical or otherwise) the employer is not expected to seek a medical opinion, but should apply the rules concerning misconduct dismissals (i.e. take disciplinary action based simply on the amount of absenteeism).

Published: 03 Jun 2011


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