Ill-health may, in some cases, give grounds for a fair dismissal. It is important to consider, and approach dismissals for long-term ill-health rather differently from dismissals for frequent short-term ill-health.

1. Long-term ill-health

A long-term sickness absence may constitute a fair reason for dismissal on the grounds of “capability”. In considering this it is vital that an employer concentrates on the effect of the illness on the individuals’ ability to perform the actual work that he/she is employed to do. An employment tribunal will consider the extent that the individual could carry out his/her normal duties when deciding if a dismissal was fair or not.

The case law indicates that an employer must consult with an employee about the illness, its likely duration, effect on work etc, before dismissing for reason of ill-health. In addition the employer should obtain some medical information about the illness and its effects on the individual, and a prognosis. Furthermore the employer should consider if there is any alternative work that the individual could do rather than be dismissed.

Obviously, in deciding what steps to take about a long-term illness absence it will have to consider the nature of the employee’s work, the nature of the illness, as well as its own business needs. The size and resources of the business will also have to be considered – as a tribunal may well expect a larger business (with a number of departments, or with different jobs that might be appropriate alternatives to dismissal) to retain the employee as opposed to a smaller business (whose resources may be much more limited).

Disability discrimination is an important consideration in dealing with long-term sickness absence, and ill-health dismissal. In order to consider whether or not a long-term sickness absence is due to a disability the employer must obtain a professional medical report on the employee and his/her illness. The Equality Act imposes a duty on employers to make “reasonable adjustments” to assist any employee in continuing and performing his/her work. Therefore employers must examine alternatives, and possible adjustments, before dismissing an employee that has been on long-term sickness absence.

2. Frequent Short-term absences and dismissal

The process for considering and dealing with frequent short-term absences is a little more difficult to address than that for long-term absence. Sometimes apparently unconnected short-term absences may, on investigation, be due to an underlying condition (which may constitute a disability under the Equality Act). In other cases the frequent short illness absences may be due to laziness, drinking too much the night before, or a wish to avoid particular tasks at work. It is still necessary to obtain a professional medical report in these cases, at least in order to ascertain if there is genuinely an underlying medical condition that has caused the absences.

There will still be a need to have meetings with the employee to discuss the absences, and the employer must ensure that the employee is aware that continued absences may make dismissal likely. There should be periods of review, with future meetings with the employee to discuss progress (or lack of it) and changes in the sickness rate.

Employers should be aware that frequent short-term absences may be symptomatic of other problems, such as bullying or discrimination. Therefore it should not simply be assumed that the frequent absences are unfounded. As always employers must make their employees aware of procedures dealing with ill-health absence, and follow them fairly.