HR & Employment Law Insights

Helping family businesses, start-ups, charities, social enterprises, and other growing or established businesses throughout the UK make sense of HR and Employment Law challenges.

We get asked HR related questions every day and each week we will be sharing our top question of the week that we have been asked here at The HR Booth.

This week Alistair answers the question "Do we need to offer an employee another role in our organisation or can we dismiss due to long-term absence?"

Question

We are considering dismissing an employee on ill health grounds.  Do we need to offer her another role in the organisation or can we dismiss due to her long-term absence?

Answer

While there is no specific duty for you to offer an employee suitable alternative employment before dismissing her by reason of sickness absence, consideration of alternative employment would be part of a fair dismissal procedure.

The employee's ill health may prevent her from carrying out the job that she is employed to do, but you should consider whether or not there are positions available in the organisation that she would be capable of performing, for example positions requiring less strenuous physical activity. You will be better placed to defend a claim of unfair dismissal if you can show you considered alternative employment for the employee before dismissing her.  Before proceeding with a formal meeting to discuss her sickness absence, I would suggest we obtain an independent occupational health report and we can ask very specific questions about whether she is likely to return in the near future, and if so what any kind of phased return would look like.  We can also ask whether she could be considered for alternative roles and this allows you to demonstrate you fully considered all options before dismissing.

An occupational health report is more detailed than a GP report, and they can make workplace recommendations which will help you defend any potential unfair dismissal claim.  The report will also highlight any potential breaches of the Equality Act, allowing you to make an informed decision.

Please ensure that your employee is given adequate notice of the meeting, has the right to be accompanied, and is fully aware that one potential outcome is dismissal on the grounds of ill health.  We can support this meeting face to face and prepare the necessary documentation to ensure you are fully prepared.