1. Many employers do not anything when they have an employee absent due to ill health. This may be because an employer does not undertake a return to work interview when an employee comes back from a period of illness, so they can understand the reason for their absence and the possible adjustments they might make. Sometimes employees can languish on sick leave for a number of years. Employees accrue holiday while they are on long-term sick leave, so there is a cost to an employer if they do nothing.
  2. Employers are often worried about contacting employees when they are off sick. Employers are able to contact employees when they are off sick and indeed have an obligation to do so in some circumstances. In fact if an employer does not make contact, then the employee’s perception may be that the employer is not bothered about their health. An employer cannot avoid this obligation by saying that the employee never contacted them. However, an employer does have to be careful about excessive contact as it would be inappropriate to bombard an employee with telephone calls and/or letters.
  3. Not understanding the value of medical evidence. In order to ensure that a dismissal is fair an employer will need to show what reasonable steps have been taken to discover the employee’s medical condition and likely prognosis. It is difficult to envisage a case where an employer will not have some level of consultation with a doctor. Employees cannot be compelled to undergo medical examination or submit to disclosure of medical records unless they have agreed to in the employment contract, and if they refuse to consent the employer will not be criticised provided that they have attempted to obtain medical advice.
  4. Employers need to be clear with instructions to medical experts so that the medical report answers the specific questions about the specific employee. If there is an inadequate report employers need to go back to the expert. Employers also need to be aware that depending on the illness they may need a specialist rather than a GP report. A tribunal may consider that it was unreasonable to limit investigations to a medical expert who does not specialise in the relevant field. In addition, a GP’s report may not contain a clear prognosis and an employer may be criticised if it dismisses on the basis on an unclear prognosis.
  5. Employers need to ensure that they warn the employee that dismissal could be contemplated and ensure that they meet with an employee before they dismiss. In order to form a view on the likelihood of the employees return to work the employer must make reasonable enquiries. This means that the employee should be consulted fully so as to establish the reason for the absence and employee’s view of when they are likely to return to work. The employee should be made aware that the employer is contemplating dismissal if the employee does not return to work. This is not so much a disciplinary warning as giving the employee full notice of the potential outcome if their health does not improve.
Dismissal for ill health; 5 common mistakes employers make