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A DRASTIC CHANGE IN THEIR ILLNESS
March 2010
When an employee was first signed off, the sick note said “chest infection”. No it cites “stress” as the reason for his absence. Either way, you want him out if he cannot do the job. But what step must you take before even trying to fire him?
Give me two reasons
One of our subscribers recently contacted us for advice on what they should do when the reason given for an employee’s sickness absence changed on their sick note. Originally it started off as “bronchitis” but has now become “stress”, with no mention being made of the original complaint !
Dragging your heels
This has been going on for a few months and our subscriber does not want to be employing someone if they can’t do the job – whatever the reason for their illness. So as he’s considering dismissing the employee, what should he do first?
Incapacity
It’s possible that the employee’s illness (whatever it really is) will mean that he is disabled within the meaning of the Disability Discrimination Act 1995. If this were the case, he could try to claim disability discrimination in relation to any dismissal from day one of employment.
First things first
The first thing our subscriber must do is find out as much as he can about the employee’s illness – he should not make any assumptions about it. His best bet is to ask the employee’s GP to prepare a report about his condition. However, before he can do this he will need the employee’s written consent to apply for it.
Tip 1. The letter to the GP can specifically ask for their opinion as to whether the employee is disabled within the meaning of the Act.
Tip 2. If the employee unreasonably refuses to consent to a medical report, a decision on his future employment can be made without it, ie. on the facts that are currently available on his health and ability to work.
No disability
But let’s assume that the report does not identify a disability, yet the employee remains unwell. In this situation he should consult with the employee about his condition. This will allow our subscriber to weigh up the situation, and balance he need to get the work done, against the employee’s need for time off in order to recover his health.
Not feeling up to it
If it’s clear that the employee can no longer continue in his current duties, the employer should consider whether he has alternative work available for him. He should also look at options such as homeworking or part-time hours.
Tip. Our subscriber would not be expected to create a special job for this employee, he just has to investigate if alternative work exists.
At last!
If no other work is available and the employee can’t carry out his role then dismissal is an option, but it should not ever be considered before specific medical advice is sought in relation to the employee’s abilities.
Source: Tips & Advice Personnel Feb 18 2010
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