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Kasare
Kasare, Solicitor
Category: Law
Satisfied Customers: 1301
Experience:  Solicitor, 10 yrs plus experience in civil litigation, employment and family law
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We have an employee who has been on long term sickness leave

Resolved Question:

We have an employee who has been on long term sickness leave following an accident at work on 28th October 2013 (we weren't to blame).
Having spoken to the employee, it seems that the chances of returning to work are very slim, as due to the duties required, it is a physical job and the employee at the moment is unable to raise his arms above his head.
We are sympathetic and have allowed him as much time off with regular updates. The employee is now 70 years old, and was until the accident, very active.
If we were to part company, would we be required to give severance pay?
Submitted: 2 years ago.
Category: Law
Expert:  Kasare replied 2 years ago.
Hi thanks for your question, I will assist you with this.
It is possible to dismiss this employee fairly, but you must follow the appropriate procedures. As the employer you need to be able to demonstrate they you have acted sensitively, fairly, to have consulted with the employee and considered all available alternatives to dismissal.
Before you can justify dismissing an employee for long term sickness you must:
1. Investigate the employee’s sickness and specifically find out how long it is likely to be before they will be able to return to work, if at all.
2. Arrange a meeting for the employee to respond to any information you have and for them to put their point of view forward if they think their job should remain open longer.
There would be 2 of the potentially fair reasons for dismissal to defend or prevent an unfair dismissal claim in this case. These reasons are:
1. Capability
2. Some other substantial reason
If you have reached the conclusion that dismissal is or may be necessary, the following are the minimum required in procedural terms:
1. Arrange a meeting with the employee on appropriate written notice and explaining the position and that dismissal is a possibility
again review medical evidence available
2. The employee must be notified of his right to be accompanied at the meeting by a Union rep or work colleague
3. The employee should be given the opportunity to put his or her views forward at the meeting.
Any decision to dismiss should be carefully considered after the meeting, communicated to the employee and if the decision is to dismiss, the employee should be informed of his right to appeal.
Thereafter, if the decision to dismiss is made, you will need to pay this employee statutory notice pay at full rate of pay which will equate to 1 week’s pay for up to 2 years of employment and subsequently, 1 week for every year of their employment up to a maximum of 12 weeks.
You will also have to pay any outstanding holiday pay that has accrued over the period of sickness - less any holiday payments that you may have paid the employee during this time. In July 2012, the Court of Appeal made a decision on an important sick-leave case. It ruled that an employee on long-term sick leave is entitled to carry holiday leave forward to the next year, even if no specific request had been made to do so.
If you consider that this employee may bring a claim in the tribunal against you despite following a fair procedure (some employees do, even if ultimately unsuccessful) a potential way to prevent this would be to consider offering the employee a compromise agreement.
I hope this assists, if you require anything else on this matter, please ask.
Kasare, Solicitor
Category: Law
Satisfied Customers: 1301
Experience: Solicitor, 10 yrs plus experience in civil litigation, employment and family law
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