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Incapacity - it's enough to make you sick! Dealing with an employee's long-term illness is never easy. On the one hand, the employer understandably feels sympathy for an employee who is sick or injured. On the other hand, there is the need to get on with the business, by either getting the employee back to work, or hiring a replacement. So how long must an employer hold the job open for someone who is sick? When can an employer decide that enough is enough? A dismissal for incapacity (being too sick to work) is subject to the same test as any other dismissal – that is, whether the decision to dismiss (and how the employer went about it) was what a fair and reasonable employer would have done in all the circumstances. Alison Maelzer In practice, this will involve an assessment of a number of factors: • How long has the employee been absent? • How is the employee’s absence impacting on the business? • Can the employee’s position be filled temporarily by a replacement? • What is the prognosis for recovery? • How long has the employee been working for the company? • Is the illness/injury work-related? In terms of a process, the key thing in an incapacity situation is communication. It is essential to work with the employee to consider the factors set out above. It is almost certain that you will need to get medical advice regarding the employee’s prognosis, and of course, you will need the employee’s consent to receive medical information about them. The employee will need to be advised that you are considering terminating their employment for incapacity, and given time to respond to this. The employee will be entitled to have representation. It is likely that you will need to have several meetings to work through the information and possible alternative options (redeployment, temporary replacement, rehabilitation role/light duties). As always, you will also need to check the employment agreement and any company policies to ensure that you comply with any provisions relating to incapacity or termination in general. There are a number of cases indicating that the courts are pretty tough on employers who make hasty decisions to dismiss employees for being too sick to work. As the illness or injury is (presumably) not the employee’s fault, it is not surprising that any decision to dismiss will be scrutinised closely. For this reason, we would always suggest that employers get legal advice before commencing any sort of process with a sick employee. This is one of those situations when an employer is never going to look like the good guy. The best you can do is to treat the employee with respect, be receptive to alternative suggestions, and make sure that you consider all the circumstances before making any decision. By Alison Maelzer, Senior Solicitor at Hesketh Henry.

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