Terminating the employment of a sick employee is one of the hardest decisions for an employer to make. There are a number of complex legal factors to consider: whether the employer has reached a point where it can fairly terminate employment on capability grounds, whether the employee is disabled and, once the decision has been made, whether a notice payment or accrued holiday payment is due.
Timing is vital when considering whether to terminate an employee’s employment due to illness. For a capability dismissal to be fair, an employer is expected to have reached a conclusion regarding the reasonableness of continuing to keep the employee’s job open. It can be difficult to decide the point at which that is no longer reasonable. The employer should have reliable information about: the nature of the employee’s illness; relevant symptoms; any workplace adjustments which could hasten or facilitate a return to work; the prognosis for recovery; and whether the illness constitutes a disability. The employer will need to consult with the employee, the employee’s GP and/or specialists and with its own nominated occupational health advisers.
