Sick
The grounds an employer can use for the purpose of dismissal are set out as follows:
a. The capability, competence or qualifications of the employee for performing work of the kind which s/he was employed by the employer to do;
The principal area we are concerned with here is absence due to illness or injury. It is often assumed that an employee cannot be dismissed fairly while on certified sick leave from his or her work but this is not in fact true. It is difficult to lay down any hard and fast rules to apply to these cases as each will be treated on its merits. Issues such as length of service, previous record and the importance of the job will vary and will have to be taken into account. However, for the purpose of analysis, these type of claims are often divided into short-term and long term absences.
Short-term illness related dismissal generally occurs where the employee has a medical problem that results in frequent absences for short periods from the workplace. Assuming that the employer does not question the genuine nature of the problem, s/he will be expected to have:
(a) established that a pattern of absence exists and that it is causing problems to them;
(b) satisfied themselves that the problem is unlikely to get better in the long run;
(c) warned the employee that dismissal is likely to result if things do not improve.
For details of a well-known short-term absenteeism case (see Hooney -v- Rowntree Mackintosh (UD 473, 374, 475, 478, 1980) where the attendance records of four employees over four years were documented to the Tribunal. These averaged 20-30 absence days per year per employee. The employer warned that such a high level of absenteeism was unacceptable. When the situation did not improve, the employees were dismissed. Despite genuine medical problems and long periods of service respectively, the dismissals were found to be fair
Long-term absence
Many of the same considerations exist in a long-term absence case. However, the employer here will be expected to obtain detailed medical evidence that an early return to work is unlikely. There is no set period of absence by which we can say a dismissal will or will not be considered reasonable. Obviously, the longer the absence the easier for the employer to show that it is causing genuine difficulty in terms of organisation in the workplace.
In terms of medical evidence, the employer may often require an employee to attend their own medical expert where they are doubtful or uncertain about the employee's medical practitioner's view. Some employers will go so far as having this obligation inserted into the employees contract. Whilst there is no specific obligation outside of contract to attend the employer's doctor, a Tribunal hearing an unfair dismissal claim might consider it unreasonable of an employee who is absent on a long-term basis not to attend..