5. Sickness and dismissal

Most employers will have their own procedures for managing sickness absence including circumstances under which the possibility of dismissal can arise (see page 24). Dismissal for capability reasons can be fair and the term “capability” can apply equally to the worker’s physical and mental abilities.

The sickness absence and attendance at work policy at Hadlow College says: “Termination on the grounds of incapability will only be used as a last resort, once attempts at improving levels of attendance, employee rehabilitation or redeployment have failed. Termination is, however, a possible outcome of unsatisfactory attendance levels”.

Following the procedure for dismissal will include investigating the reasons for the absence. This nearly always means asking for a medical opinion (with the employee’s consent); looking at the condition and prognosis, and the odds of a successful return; any steps the employer could reasonably take to support that return; consulting the employee; looking at alternative work; and warning the employee clearly that continued or further absence may result in dismissal.

As always, any dismissal due to sickness or injury must be reasonable (Section 98 (4) ERA 96). Tribunals will take into account for example:

• the employer’s size and resources;

• problems and cost organising short-term replacements;

• importance of the role;

• length of service;

• previous attendance record; and

• the nature of the illness.