Contemplating dismissing an employee who is on long term sickness has always been difficult for employers/practices. However, in the recent case of O’Brien v Bolton St Catherine’s Academy the Court of Appeal has provided us with some helpful consolidated guidance indicating that it is acceptable to tackle the issue if:

• you can justify dismissal and
• you act reasonably

So how can you achieve this?

(1) Step back and examine the circumstances objectively – don’t just rush in

It is not as straightforward as having a sickness time limit after which it would be acceptable to dismiss an employee on long-term sickness. So you can’t decide after someone has been absent through sickness for 6 months that dismissal is an appropriate step.

Instead, you need to start by objectively assessing the particular circumstances and:

• asking “is this the right time to consider dismissal” and then
• deciding what you reasonably have to do to make the decision to dismiss

based on these particular circumstances.

This is why it’s a good idea to have a reasonable policy or process which you follow with regular employee updates and medical evidence.

(2) Examine the impact of the absence on your organisation

In a very large organisation an employee being absent for a long time may have very little impact, whereas in a small practice it will be noticeable immediately.

Therefore, part of your dismissal decision making process should include:

• examining the impact of this employee’s long-term sickness and collating any evidence to support this. For example, there may be added expense by paying for a temporary worker, or a heavier work-load for other employees, or the work simply not being done
• appropriately sharing this information with the employee who is off so that they are aware of the impact and why you need to know when they will be able to return to work

(3) Make your decision based on up to date medical evidence

Medical conditions can change (improve or deteriorate) rapidly so it makes sense that you base a decision on up to date medical evidence which shows that there is no foreseeable return to work.

In the O’Brien case there had been mention in the medical evidence of a potential return to work in 3 months yet this had not been fully considered.

Remember that whilst dismissing an employee who is on long term sickness can be unpleasant to manage, allowing the situation to drag on creates its own problems, such as dissatisfaction from the other employees, and may not actually be assisting the employee who is ill.