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Kirsty Smith
Member - 1 post
An employee has been off work for approximately 8 weeks. We have not received any communication from him as to why he is off or any medical sick notes. We have tried to contact him at the address/telephone number we have but he has evidently moved. We have withheld his SSP. We have been contacted by a finance company asking for details of our employee as he is making a claim for sickness protection. We have told them that we cannot give this information without his prior consent directly to us. Can we terminate his contract of employment?
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Martin Brewer - Mills & Reeve
Online advisor - 84 posts
Kirsty, many thanks for your question. You ask whether you can dismiss this employee but essentially that is the wrong question. An employer can (except in very exceptional circumstances) always dismiss an employee. The real question is what are the consequences of so doing.
The first point is that in general if the employee has less than 1 years service he will not be able to claim unfair dismissal. There are some exceptions to this so it is always worth seeking specific advice.
If the employee has over 1 years service he is able to claim unfair dismissal. This begs the question what should the employer do to ensure a fair and reasonable process is followed in order to defend such a claim.
The first issue you need to face is what is the reason for dismissal. Is it the sickness absence, the failure to communicate or the employee's failure to keep you advised of a change in personal details which is arguably a breach of contract in itself, leaving the employee open to disciplinary proceedings.
You say the employee is off sick but if he hasn?t communicated with you how do you know?
If the reason for dismissal is the fact of the absence (i.e. absence not related to sickness - and if you don?t have sick notes arguably the absence is unauthorised and not sickness absence) then you need only follow the disciplinary process including doing what is reasonable to get in contact with the employee.
If the reason is a failure to keep in contact/inform you of a change of address then again you need to follow the disciplinary process.
However, if you want to dismiss for sickness related absence the process entails you trying to obtain an up to date medical opinion and then balancing the employee's absence, the diagnosis and prognosis against the impact of the absence on the work, other employees and the business in general.
Hope this helps.
Martin Brewer
Mills & Reeve
martin.brewer@mills-reeve.com
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