“We have an employee who has been sick a lot recently. He has now been absent since the beginning of December and is covered by a doctor’s certificate, but it is very vague, and his absence is having a detrimental impact on his department because it is short staffed and struggling to cope. What can we do?”
In light of the length of time the employee has been absent, he will be considered to be on long-term absence. There is no strict definition but any absence lasting four weeks or more is usually known as long term. It appears that the employee has been with the company for a couple of years and therefore he will have qualifying service to raise claims for unfair dismissal. If the company are ultimately contemplating dismissal, then to avoid the risk of a claim they need to be able to establish both a fair reason to dismiss and to show that dismissal was within the band of reasonable responses (i.e. it was fair to dismiss). In light of the length of absence and previous absence, it is a good possibility that the individual may be considered disabled within the meaning contained in the Equality Act 2010. This means, therefore, that as the employer you have an automatic duty to consider making reasonable adjustments and therefore the procedure/advice given below is good guidance to avoid risks of either disability discrimination and/or unfair dismissal. Note that there is no qualifying service requirement for an employee to bring a disability discrimination claim.
Procedure to Obtain the Medical Report
1. Firstly, investigate the nature, extent and likely duration of the employee’s illness. This would be by obtaining relevant medical evidence such as a medical report from the employee’s GP and/or consultant or alternatively a private occupational health (“OH”) provider. However, before an application for a medical report can be made, you must first notify the employee and obtain their consent in writing. If the absence is stress related, you could also consider referring the employee to any stress policy or counselling services on offer, if available. In the event the employee refuses to agree to give consent for the report, the company would be entitled to act on the facts currently available. In such a situation you would advise the employee in writing that a decision would be taken at a capability hearing on the basis of the information available and that it could result in dismissal. Prior to this course of action, however, the company should seek to exercise all avenues to try to obtain the employee’s consent and find out why the employee is refusing to provide the same.
2. On receipt of a signed consent form by the employee you would then write to their GP/Consultant requesting the report and asking specific questions that the company need to know in order to assess their likely return to work, whether any adjustments were needed etc. A copy of the signed consent form will need to be sent with the letter requesting the medical report so that the GP/Consultant can see the employee has given consent. The employee has rights under the Access to Medical Reports Act 1988 and therefore details of those rights should be sent with the initial request for consent. This includes the right to refuse to give consent, the right to see the report before it is sent to the company etc.
3. Once you have the medical evidence, the next stage is to carry out meaningful consultation with the employee by holding a meeting to discuss the report. If the employee is unable to attend the workplace, you could offer to attend the employee’s home or meet in a neutral location. Subject to the reason for absence, (particularly if related to a mental impairment such as stress/depression) you could permit the employee to be accompanied by a friend or family member. Part of the consultation should include discussing whether any reasonable adjustments can be made to their current duties or workplace to help facilitate their return to work. If, however, reasonable adjustments are not possible, you should also consider whether there are any alternative positions available although the company are not obliged to specifically create a position for the employee. Other points for consideration will include the following:-
i) How long has the employment lasted, i.e. length of service;
ii) How long was the employment expected to continue, do you envisage the employee remaining until their retirement;
iii) What is the nature of the employee’s job;
iv) What is the nature, effect, and anticipated length of the illness;
v) What are the requirements of the business for the work to be done and could a replacement be engaged to do that particular job in the interim;
vi) Is it envisaged the employee may return to work and if so, when;
vii) Could the employee be offered an alternative position more suitable to their state of health; and
viii) Consider the importance of the employee and/or the post occupied to the business, the impact their continued absence is having on the business and the difficulty in cost of continuing to deal with their absence before contemplating dismissal.
4. After consulting with the employee on the medical evidence and possible reasonable adjustments and/or alternative work, if it is decided that the employee’s job can no longer be held open, they should be informed of the likelihood of a dismissal. However, they would not be dismissed at this stage because a further meeting should be held to discuss this possibility. A formal invitation should be sent to the employee inviting them to attend a meeting and they should be given the opportunity to be accompanied by either a work colleague or trade union official. Again, the company could exercise its discretion and permit a family member/friend to attend.
5. Hold the meeting and have a further discussion about the situation and confirm the decision to dismiss. Once dismissal has been decided upon, ensure the employee receives their contractual/statutory entitlements including the correct pay entitlement, notice and any accrued yet untaken holiday pay. The decision should be confirmed in writing and in the dismissal letter, clearly identify the reason for dismissal, effective date of termination and offer the employee the right of appeal.
6. If the employee appeals, then an impartial Manager/Director should conduct the appeal. This should be someone who has not previously been involved in the discussions. A written invitation to an appeal hearing should be sent offering the right to be accompanied. It should give reasonable notice of when the appeal hearing is to take place. At the appeal hearing further discussion should be had to enable the Appeal Officer to decide whether they agreed with the decision to dismiss. Following the appeal hearing, the decision should be confirmed in writing.
Clearly, whether a dismissal should be contemplated will depend on the content of the medical report and therefore if the report is not sufficiently detailed for the company to make a decision, the company is entitled to go back to the GP/Consultant and request further details.
It is important to have a written record of all meetings so have someone present to take minutes of the same so that you have everything documented and your paper trail in place. If you were to receive any Tribunal claim you will need to be able to demonstrate that you followed a fair procedure and the paper trail would be evidence of the same, together with any letter/emails.
Lastly, don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services (MILS Legal Ltd) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.