Absence due to ill health or disability poses very complex and difficult questions for employees and employers alike.
Imagine you are an employee. You are very ill or even disabled. You have long service, a clean disciplinary record and your employers have been very happy with your performance. Then you are dismissed because, due to your ill health or disability, you have been absent for a considerable period of time. Does that feel unfair?
However imagine you are the employer. Yes, the employee does have a good work record. You do not want to be harsh or insensitive. However, you have a business to run and you cannot run it properly when you do not know how long the employee will be absent for.
Employees will often require advice both on unfair dismissal and disability discrimination. The difficulty they face is that the law accepts that an employer is permitted to dismiss in cases of prolonged and intermittent absence. Furthermore the employer may dismiss, in some cases, simply because of the length of the absence and not necessarily because he believes the employee is unlikely to return in the near future.
However employers are expected to carry out fair consultation and to take reasonable steps to ascertain the medical position. They must also be wary that dismissal may lead not only to a claim for unfair dismissal but also disability discrimination.
Employers would be well advised to devise clear absence management policies. Such procedures will often specify that a certain number of days absence will trigger a warning and so on until the employer may dismiss. However, the procedure must always be applied flexibly and in the light of any medical evidence.