Wednesday, December 14, 2011
Dealing with Incapacity Dismissal
Many employers worry about the pitfalls when dealing with absence through sickness.
Business efficiency is reason enough for employers to adopt robust procedures when dealing with sickness problems. Clear notification and return-to-work policies are effective means of discouraging recurring or lengthy absences. We strongly advise clients to enforce the notification-of-absence procedures detailed in your Employee Handbook and use the Return to Work Interview procedure.
Dismissal: Key Legal Issues
1. Fair reason
All dismissals must be carried out for a potentially fair reason under s.98 of the Employment Rights Act 1996 (ERA).
For example (when dealing with sickness):
• Conduct (s.98(2)(b)) in cases of persistent unauthorised absence or where illness has been faked.
• Capability (s.98(2)(a)) in cases where lengthy or frequent absences have affected the employee's ability to do their job.
• Some Other Substantial Reason (SOSR) "of a kind such as to justify the dismissal of an employee holding the position which that employee held" (s.98(1)(b)). For example, where absence is unreasonably affecting business efficiency.
2. Fair procedure
Section 98(4) of the ERA states that a fair dismissal takes place when "the employer acted reasonably in treating the reason for dismissal as a sufficient reason for dismissing the employee". The procedure should involve an investigation of all relevant circumstances and a discussion with the employee, who would be given the opportunity to have his/her say.
2.a. ACAS Code of Practice
The ACAS code on discipline and grievance expressly applies to misconduct and poor performance issues but may also apply to other dismissals in some circumstances (not redundancy situations or fixed-term contract expiry). Although case law suggests that the code should apply to non-disciplinary situations.
3. Qualifying service
You might think that employees who have accrued less than one year's continuous service will be unable to bring a claim. However, many employment rights (including some that relate to unfair dismissal) accrue to employees from the commencement of their employment.
A Fair Dismissal?
When asked to decide whether a capability dismissal is fair, an Employment Tribunal will consider the following key points:
• The nature of the employee's illness.
• The prospects for that employee returning to work.
• The treatment of other employees in the same or similar circumstances.
• The need for the employer's business to cover the work of that employee.
• The employee's length of service.
• Whether the employer considered the availability of any other more suitable employment.
• Whether the illness/injury resulted from the conduct of the employer.
• Was it reasonable to expect the employer to keep the employee's job open for any longer?
• Medical evidence. Medical evidence will be of great importance but, however clear the evidence; it should always be discussed with the employee. A specialist/expert report should be preferred over general opinion although a decision to dismiss is ultimately a managerial, not a medical, one.
Note also:
• Disability discrimination
A worker classed as disabled under s.6 of the Equality Act 2010 enjoys the following rights without any period of qualifying service:
• Protection from direct and indirect discrimination.
• Protection from discrimination arising from his/her disability.
• The right to reasonable workplace adjustments to help to overcome any "substantial disadvantage".
• Protection from victimisation and harassment.
• Pregnant women
Dismissing a worker or subjecting her to any detriment concerning pregnancy/maternity-related illness that occurs during her "protected period" is unlawful under several pieces of legislation. A "detriment" would include issuing a warning under an employer's sickness absence procedure.
The above is general and should not be taken as specific advice for any given situation.
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