Be careful not to discriminate against employees on sick leave

In a recent case, an employee successfully claimed unfair dismissal against an employer who had terminated his employment after he had been off sick for almost 2 years. In September 2011, the employee had an operation on a long standing back problem. Following the operation, the employee was told to report back to his surgeon for an update in January 2012. The employee, who throughout his period of absence had fully complied with the employer’s absence policy in terms of providing updates and medical reports, told his employer and their response was to call the employee to a disciplinary meeting. At the meeting held in November 2011, the employer terminated the employee’s employment on the grounds of his on-going incapacity. When finding in favour of the employee, the Employment Tribunal said that the employer had been wrong to terminate the employee’s employment without having an up to date report on his ability to return to work at its disposal. The Tribunal said that the employer should either have waited for the employee to attend his follow up appointment with his surgeon in January 2012 or it should have obtained its own medical report prior to that. Had the employer done that and they considered that dismissal was a possibility at that point, they would then have had to set up a long – term incapacity meeting with the employee. A decision to dismiss should only be made after that meeting and only then if there were no other options available.

If you require any employment advice or representation, whether you are an employer or employee, feel free to contact Alan Davidson for a consultation: 01756 692 869.

Alan Davidson
Partner, Employment

*This blog has been prepared by AWB Charlesworth LLP  as an overview of the legislation and does not constitute advice on any specific matter.  You should not take any action in relation to it without taking detailed legal advice.