Long-term sick leave

What can you do about an employee with a long-term psychological illness? Employment lawyer Sophie Whitbread looks at the options the law allows you

The problem

You run a busy restaurant in the centre of town. It is very popular and at lunchtimes attracts city workers wanting fast service, and at the weekend draws the tourists.

One of your waitresses has been on sick leave for a month and has a doctor's note stating that she is suffering from stress and depression. She has just sent in another doctor's note for a further month.

Company sick pay was paid for a week, but the waitress now receives only statutory sick pay, which she is not happy about. You are keen not to have employees lingering at home and would like to terminate her employment.

The law

Under the Disability Discrimination Act 1995 it is unlawful to discriminate against an employee who is disabled, and employers are obliged to make reasonable adjustments to allow them to continue working.

An employee need not be registered as disabled. He or she must simply be suffering from a physical or mental impairment that is long-term (lasting or likely to last 12 months or more) and that has a substantial adverse effect on his or her day-to-day activities.

Expert advice

The waitress could be disabled within the meaning of the act.

It is possible to dismiss an individual who is unable physically to continue working and, indeed, who is disabled. However, you must show that you have dismissed them for a fair reason that is not discriminatory and that you have considered all reasonable adjustments.

The first step would be to obtain a medical report to ascertain when, if at all, the waitress would be able to return to work. If she can return to work in the near future, it is unlikely to be fair for you to dismiss her for capability, and you will need to wait for her to return.

Assuming she is capable of returning, you would need to ascertain from a doctor whether any adjustments would be required.

It may be that it is possible for her to return to work for less stressful shifts, or for fewer shifts per week, or for fewer hours per day.

If this is not possible, you would need to consider whether work is available within the business in a less stressful environment - for example, office work. This often causes problems in the catering industry, as sedentary jobs are few and far between.

However, you would be required to consider it. Case law has even suggested that, where a disabled person is unable to carry out their current role, they should be considered first for any alternative role, even if they are not as well qualified as others within the business who wish to apply for it. This places a heavy burden on employers.

If the employee is unable to return to work at all, or there are no reasonable adjustments that can possibly be made, it may be possible to dismiss her for reasons of capability.

You must follow the usual statutory procedures to ensure that the person is dismissed fairly and that you have relevant medical evidence to show that this is a fair and non-discriminatory dismissal, and that you have considered reasonable adjustments.

Check list

• Review your sickness absence management procedures to ensure that they take into account disability issues.

• Ensure that managers are aware of the need to make reasonable adjustments.

• Ensure you have an equal opportunities policy in place and that employees are trained on it.

Beware!

Do not assume that you may immediately dismiss someone who has gone on long-term sick leave. Instead, take time to investigate matters to establish that you have a fair reason for dismissal and that you avoid discrimination.

Contact

sophie.whitbread@charlesrussell.co.uk