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Paul Voakes
Member - 4 posts
We have an employee who is suffering severe arthritis in his right ankle. This condition has not been brought on by his working conditions.
He has been off work with this condition since 27th Feb 2004.
Under his contract of employment he was entitled to 26 weeks sick pay 13 at full pay and 13 at ½ pay. This has been honoured in full. He has also had his full entitlement to SSP.
He has still not had the required operation and when he does it will be a further 5 to 7 months before he can return to work.
Can we terminate his contract of employment as we can no longer carry the cost?
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Bozena Benton
Member - 53 posts
I'm not sure to which costs you are referring? If he has exhausted all sick pay, I'm assuming that he is now on no pay. Are you alluding to indirect costs of providing cover? If this is higher than the salary you would have paid your employee some of this cost can be offset against this.
You can dismiss at it is the right for management to say enough is enough, however, you need to make sure that you have followed a fair procedure and taken into account issues of disability.
You do not say how long the wait for the operation is or whether you could make adjustments to the work to enable the employee to come back to work whilst waiting for his op. Have you asked for a medical report to ascertain the long term prognosis and likely absence? How does this compare to other staff who have been off on long-term sick e.g. post cardiac or gynaecological problems. You need to ensure that you treat this employee equally taking into account the work he does, his length of service and the impact his absence has on your business.
Dismissal is an option but the ultimate one. You need to ensure you have explored all avenues and that you follow a fair procedure for capability - at minimum the statutory dismissal procedure.
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Tony Bertin - Employment Relations Solicitors
Online advisor - 4 posts
Paul
Thanks for your query.
Sorry for the delay in replying.
Sickness absence probably gives HR managers more headaches than anything else because there are no absolute rules.
A contract can never be formally terminated fairly all the time the contractual sick leave is due. If the paid leave comes to an end but there is an insurance benefit like critical illness cover; be careful. A lot of policies will only pay employees and not former employees. This can give rise to a claim if an insurance funded benefit is cancelled following termination.
A failure to return to work can amount to a frustration of a contract without the need to embark on formal termination procedures but I think it wiser to rely on normal steps obviously using the new statutory procedures. However if you are bearing no cost using the correct procedure alone will not be enough. The decision will need to be reasonable. If you are able to reallocate or cover the work your decision might not be seen as such and also the level of responsibility is also relevant. If the post this person fulfils is critical and the business is suffering, this would help you.
However almost certainly this individual is disabled. He has had 39 weeks off and will be at least 13 weeks before an operation. Therefore his condition will have at least 12 months time scale. You will have to consider reasonable adjustments including the amount of sick leave. Maybe he could come back to work in a different capacity. You should seek more advice including medical.
Regards,
Tony Bertin
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