Employee absence from work, whether that be down to annual, compassionate or maternity leave or sickness is often hard to manage, particularly for a small business. The difficulty is heightened if an employee succumbs to an extended, or in the worst case, terminal illness that is likely to affect their ability or expected timescale to return to work.

It is often a topic that employers are loath to tackle, due to the emotional aspect and the long-term effect a change in employment could have on their team member. The impact an employee in this situation could have on a small business, however, could be critical and so knowing the basics is important. Below, the focus will be on the rights of employers regarding long term sick leave, and what processes must be followed.

The main factors to be considered when managing a case involving sickness are incapability, disability and equality. There are cases when dismissing an employee on health grounds is regarded as fair, but there are rules and regulations surrounding it.

If an employee is no longer able to perform the duties required by their job because of the effects of an illness, it is a distressing situation and often a financial strain for both parties. Incapability is regarded as a rational reason to dismiss but employers must go through a fair procedure before making a decision. Essentially, this involves investigating when and if the employee is likely to be able to return to work and looking at whether or not it is reasonable to wait for them to be able to return. A report from the employee’s GP, treating doctor or Occupational Health is sufficient for these purposes.

In the case of terminal illnesses and long term conditions, these can be classed as a disability, rather than sickness. The rules governing how this situation should be handled are slightly more complex as it involves consideration of the Equality Act. This Act gives protection to those suffering from a condition that is likely to have a substantial impact on the employee’s day to day activities for at least 12 months or the rest of the employee’s life.

The Equality Act imposes on employers a duty to make reasonable adjustments, such as:

• temporary or permanent adjustment of duties or redeployment eg to give lighter duties or remove requirement to drive or travel
• temporary or permanent adjustment to hours to attend medical appointments
• phased return to work.

What is reasonable is dependent on the particular employment: whilst employers are under an obligation to consider whether work can be reorganised so an employee’s duties or hours can be adjusted, they are not under a duty to create an entirely new role for a disabled employee.

It is important to remember that dismissal because of something arising from disability is unlawful unless justified. Employers therefore need to be able to justify dismissals on capability grounds where the reason for the lack of capability arises from a disability. This could cover either absences or declining performance.

Employers can feel awkward about having discussions with employees around their illness or condition. Employers getting information and advice should therefore ask the following questions:

• What is the condition and prognosis?
• What are the effects on day-to-day life?
• How long have they lasted?
• How long are they likely to last?
• Could any adjustments to the role make it easier for the employee to do the job or to return to work sooner or at all?

The laws covering short and long-term illness are complex and much rests on what is ‘reasonable’ or ‘fair’ which can sometimes be difficult to define. This is usually where additional advice is useful as disputes on the grounds of what an employer thought was reasonable can be costly to rectify afterwards.