Employment laws generate a lot of comment. Hardly a day goes by without the media reporting scare stories about the employment rights of UK employees, which are depicted as being anti-competitive, unduly restrictive and in many cases overly generous.
Each month, we are exposing some of the most common employment law myths and explaining the reality behind them. We are not pretending that employment law is easy – it isn’t, but generally it should not be difficult to get the basics right.
This month we look at whether employers can lawfully dismiss if their employee is genuinely ill.
Employers cannot lawfully dismiss if their employee is genuinely ill.
Many employers are nervous of dismissing staff who are genuinely ill, even if they have been off sick for a very long time. This can be for a number of reasons – compassion for the individual’s situation, culture of the organisation or fear of the legal and financial consequences. There is a commonly held belief that you can’t sack someone who is genuinely ill. This is a myth and in reality, provided certain safeguards are in place, genuinely ill employees can be dismissed.
The first question to ask is ‘what is the reason for dismissal’? If it is a genuine redundancy situation or there’s been gross misconduct, for example, an employer may need to adapt its procedure to accommodate the sick employee, but can go ahead and dismiss. Employees on long term sick don’t get ‘special protection’ in those circumstances.
You have to be a little more careful if the reason for dismissal is linked to the ill-health, eg, because the employee’s absence level is unacceptable. In that case, the first thing to check is whether there is an income protection or permanent health insurance (“PHI”) scheme in place. If there is, the employee should be encouraged to make a claim on the policy – dismissing them for capability / health reasons and depriving them of the right to make a claim could be very costly.
If there is no PHI or the employee doesn’t qualify for payments, then an employer can move to dismiss. Before doing so it will need to get medical advice as to when and if the employee can return, and whether any adjustments could be made to enable them to do so. Consideration should be given to making reasonable adjustments to support the employee, including the possibility of a transfer to another role. As with any dismissal, a fair procedure will also need to be followed.
Have you missed any of our other myth busters?
So far we have tackled the following myths:
1. In order to dismiss an employee, you must follow a particular procedure and if you do so, you can safely dismiss.
2. It’s not possible to retire employees anymore.
3. You can’t make a woman on maternity leave redundant.
4. Parents have the right to work part time.
5. An employer has to accept an employee’s resignation before it will take effect.
6. Employers must provide exiting staff with a reference.
7. Employers do not need to do pre-employment immigration checks on British or EU recruits.
8. You can vary an employment contract by giving notice.
9. An employee’s entitlement to notice is based on how often they are paid.
10. Employers have to accommodate all religious sensibilities and beliefs.
11. Employers can always pay the first £30,000 of any severance payment tax free