Most employment contracts contain provisions concerning sickness and most employers appreciate that people get ill, accidents happen and there will be times when employees are unfit to work. However, regular sickness can soon impact your business.

If your employee is sick and unable to work, you can ask them to self-certify for the first seven days, after this you can ask for a doctor’s note.

But what happens if an employee takes regular or excessive sick days or is absent for a long period of time due to sickness?

Getting medical evidence

If your employee’s absence continues and becomes longer term, it would be sensible for you, the employer, to obtain medical evidence to learn about their diagnosis, prognosis and timescales to return to work and if there’s anything you can do to assist their return.

A lot of employers draft into employment contracts the right to require your employee to see a doctor of your choice (usually at your cost) for an assessment. Whilst it’s a helpful tool for an employer, even with a medical assessment arranged, there’s no automatic right to see the medical report and your employee’s rights are preserved under various medical privacy laws.

It’s therefore sensible to draft into the employment contract a contractual obligation on the employee to provide their written consent for the employer to access medical records and reports, upon request. While even this still won’t give you an absolute right to get the access you need, it will put you in the best position possible.

Dismissing an employee due to sickness absence

All sickness absence cases should be dealt with on a case by case basis, taking into account each employee’s individual circumstances but the bottom line is – it is possible to dismiss someone who is unable to work because of sickness, even if they have a disability.

Process of dismissing someone due to sickness absence

There are several considerations to take into account before beginning a process of dismissing someone due to sickness absence.

• Do they have a disability?
• If so, is this causing the absence and have you considered what reasonable adjustments can be made to help them get back to work?
• Do you have all the medical evidence possible to help you understand the reason for their absence and what you can do to help the employee get back to work?
• Have you sent them for an occupational health assessment?
• Have you considered referring them to the Fit for Work service, a free Government run scheme providing access to an occupational health assessment and general health and work advice, it can also provide a return to work place which can be used as evidence of sickness, just like a GP’s fit note.
• Are there any benefits such as income protection that can replace your employee’s salary in their absence, and dismissing them may remove their entitlement to this?
• Are there any other reasons for absence? For example bullying or harassment at work or stress at work.

The length of your employee’s service will play a big part in how their absence is managed. If they are in the first two years of employment, then they can be dismissed without reprisal of an unfair dismissal claim. It’s still important to explore the reasons behind their absence to make sure you’re not indirectly discriminating against them or failing to make reasonable adjustments. You also need to think about your contractual obligations regardless of length of service.

Unfair dismissal consequences

If an employee is dismissed due to sickness absence and brings an Employment Tribunal claim, it’s most likely to be a claim for unfair dismissal and if relevant, a disability discrimination claim. Unfair dismissal claim costs can be high – up to £87,519* for unfair dismissal and in theory an unlimited amount in respect of a discrimination claim.

*Correct as of April 2020, these change every April.