Ill-health

Some key issues could include:

• Is the member now better?

• If not, what is the prognosis and when might s/he be fit for work?

• Encourage the member to give the employer a strong positive message that s/he wants to return to work as soon as s/he is fit and to be proactive in suggesting any adjustments to make this possible.

• Is it premature to be considering dismissal?

• Has the employer carried out an appropriate medical investigation, asking for a report from the member’s GP or asking the member to visit Occupational Health? Is the employer’s behaviour consistent with the medical advice on the member’s likely return to work?

• If the employee is fit for some work, has the employer thought properly about offering support or offering a staggered return, alternative duties, temporarily reduced hours, working from home?

• What is the real impact of the absence on the organisation’s ability to function without this employee (as opposed to perceived disgruntlement of some individuals)?

• Is an early retirement package a possibility?

• Is the employee being discriminated against, for example, on grounds of disability or age? Are there any reasonable adjustments that could be made?

• Is the employer responsible, at least in part, for the employee’s medical condition? Although it is not unfair to dismiss an employee for ill-health just because the condition was caused by the employer, case law indicates that any employer who caused the ill-health must “go the extra mile” by doing whatever it practically can to avoid dismissal (McAdie v Royal Bank of Scotland [2007] EWCA Civ 806).

• Is the contractual sick pay exhausted? Just because an employee has not exhausted the sick pay entitlement, this does not mean s/he cannot be dismissed, but it might still be an argument worth making.