industry news SME profile Wednesday 02 May 2018 @ 15:15 Dealing With Absent Employees

We have been asked by employers to  advise on the issue where employees are off sick or not able to provide a full service to their employer because they are unwell.  In one case our client’s employee suffered from MS making it difficult to do his job.  On the one hand, our client wanted to be compassionate, but, they had a business to run and the inability of their employee to do his job was causing problems in the company both in terms of output but also with other employees who were put upon to cover his work. 

In these cases, each matter must be assessed on the facts as an individual’s condition and symptoms will vary and each will require different levels of support from their employer.  From a legal perspective, the first thing we have to do is asses if the company have an obligation to the employee under the Equality Act 2010. If an employee is disabled, under the Act they are afforded certain employment protections, the most important of which is not to discriminate against them by reason of their illness.  In many cases it is clear cut what is a disability and what is not. Case law has been developed to deal with the otherwise grey areas and so establishing this test is an objective exercise based on the duration of the illness and how it affects an individual.   

Once protection under the act has been established we will advise on an employer’s obligations to the employee to reduce the risk of a complaint of discrimination whilst trying to achieve a favourable outcome to their staff problems.  It’s important to understand the law in this area because claims of discrimination fall under a number guises.  For example, it is discriminatory to dismiss an employee who has suffered a stroke and gone blind by making an assumption that the employee would not be able to do their job without seeking medical advice or speaking with the employee in question.

Other, less blatant forms of discrimination occur when an employer treats an employee unfavourably because of something arising in consequence of their disability. For example, if an employer dismisses a worker because she has had three months' sick leave as a result of her multiple sclerosis, the decision to dismiss is not because of the worker's disability itself (so not direct discrimination as above) but she will have treated unfavourably because of something arising in consequence of her disability (namely, the need to take a period of disability-related sick leave).

The Act also imposes a duty on employers to make reasonable adjustments to help disabled employees.  These can be minor changes such as altering the working environment or providing flexibility around working times.  However, the provision of reasonable adjustments has to just that, reasonable.  The law does not impose an unlimited obligation on employers to make adjustments. For example, it would not be reasonable to expect a company to install a lift to assist a disabled employee.  Conversely, removing clear glass doors at the end of a corridor which presents a hazard for a visually impaired worker would be reasonable.

All things considered, it may that an employer wishes to dismiss an employee who is unable to do their job and this must be done in line with current law and best practice guidance. Employers are able to dismiss employees who are unable to  work if  the decision to dismiss can  be objectively justified and they are a necessary and proportionate measure to achieve a legitimate aim in the business.  This must be carefully considered as not all reasons will satisfy this test. For example, the need for a company to save on the costs of replacing an employee will not be a legitimate aim.

Taking reasonable steps to ascertain the true medical position before deciding whether to dismiss an employee is of crucial importance. This will mean seeking up-to-date information about the nature of the illness and the likely length of absence or prognosis.   It will also involve having at least two consultation meetings with that employee and following formal procedures for dismissing an employee.

In our client matter whose employee had MS, despite having made a substantial number of adjustments, the employee was unable to work and his employer proceeded with a formal capability procedure, supported by us in the background.

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