Dismissal on the grounds of ill health capability

The dismissal of an employee who has been on long term sickness absence with little or no likelihood of the employee’s health improving could potentially be a fair reason for dismissal.

However, cases of long-term absence are likely to require detailed investigation by the employer into the medical position of the employee.

Employees may be asked to see an Occupational Health expert or other medical practitioners who will be able to consider the nature of the illness or condition which is causing the absence, assess the period of absence, and more particularly whether the absence is likely to continue.

Medical experts are also likely to be asked to give their opinion as to whether the employee has a disability within the meaning of the Equality Act, and whether there is any reasonable adjustment which could be made. If the employee is suffering from a disability, the employer is under a duty to make reasonable adjustments and has a duty not to discriminate

However, if the prognosis is that the employee’s health is unlikely to improve within the foreseeable future, then potentially employment can be terminated on ill health capability grounds. An employer would need to follow a fair and reasonable process, and any termination of employment would need to be on notice – so either the employee serves out their notice period whilst signed off sick, or an employer would be required to make a payment in lieu of notice.

If as an employee you are asked to attend a medical appointment, then you should do all you can to cooperate. In some circumstances failure to cooperate could be deemed to be a failure to comply with a reasonable management request. You will need to sign a medical authority form giving consent for the medical expert to access your medical records (if this is appropriate) and you will also be entitled to see any letter of referral to the medical expert. You will also be entitled to view the medical report before your employer has sight of it. This should be offered to you at the point the employer instructs the medical expert, so if an employee is not advised of this right, they should challenge the employer.

The employee should be advised of their right to be accompanied to any meeting which could result in termination of employment. The employee will also have the right to appeal any decision to terminate employment on the grounds of ill health capability.

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