While an employer is not required to hold open the job of a sick or injured employee indefinitely, there are a number of steps to follow before an employer dismisses a sick or injured employee.
- If an employer wishes to dismiss an employee for incapacity, it should first wait a reasonable time for the employee to recover.
- 'Reasonable time' will depend on the circumstances, including the nature of role, the size of the employer, the length of absence, ability to get a temporary replacement and the impact on the business.
- The employer should have precise and reliable medical evidence that the employee is unable to return to the workplace and either that there is no firm date stipulated for a return, or the likely date of return is outside a reasonable timescale.
- The employer should communicate and consult with the employee and the medical specialist on the employee's ability to return to work. Dialogue should include the reasons for those views and the possible risk to the employee's employment because of an ongoing inability to return to the workplace.
- There should be no misunderstanding or guessing on the medical state of the employee. If the employer disagrees with the diagnosis, they may be able to obtain a second opinion by engaging another medical specialist to examine the employee and the notes.
- The employee must be given an opportunity to take advice, have input on the decision whether to terminate and have representation in any meetings.
- An employer can not recruit a permanent replacement until the decision to terminate for medical incapacity has been correctly made.
If in doubt, take advice.