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Client Question: “I have an employee off on long-term sick leave. Can I dismiss them on health grounds?”
Our client had an employee who had been off work for several months. Whilst having great sympathy for the employee’s position, our client’s business would not be able to sustain this situation indefinitely.
It is possible to fairly dismiss an ill employee if they cannot do their job.
First of all one needs to consider whether they are classed as a disabled person under the Equality Act 2010. This creates a duty to consider reasonable adjustments to enable them to return to work.
If there are no adjustments that can be made then it may be fair to dismiss on capability grounds. The company would have to follow a fair process as well as any contractual procedures. This would mean carrying out a reasonable investigation that would usually include obtaining a medical report from their GP or treating Consultant. It might be reasonable to dismiss if the investigation shows little or no likelihood of the employee returning in the near future.
In this case it was clear to both parties that the employee would not be able to return work. We drafted a Settlement Agreement to enabled things to be resolved quickly. The company was then able to recruit a replacement without delay.