How to deal with medical incapacity
Is the medical evidence clear and reliable and is the period of incapacity/absence acceptable given the persons role in the business and the impact of the situation? If the answer is ‘Yes’ then monitor the planned return. If ‘No’ then you should initiate getting an independent specialist medical opinion. Ultimately, in cases of protracted absence or reduced capacity which is medical in nature (e.g. ongoing absence or incapacity due to illness or injury) you are legally entitled to terminate employment on the grounds that the ongoing absence has essentially “frustrated” the employment contract. The law requires that you take all reasonable steps to ascertain the basis of the incapacity and its likely duration and impact on the person’s ability to work before making any decision to terminate and that the employee has a reasonable time in which to return to work. Where there is a medically based absence/incapacity and you believe a return within a reasonable timeframe is unlikely follow the steps below. Our guidelines on medical incapacity provide more background if required. Make sure you involve Organisational Development and Capability and your manager in the process.
1. Assemble what you know of the background to the absence/incapacity including medical certificates, leave taken or planned, impact on the business of their absence, action you can practically take to mitigate the absence etc.
2. Arrange to meet with the team member to discuss the situation. Explore the reasons for the absence and the medical advice the team member has received about a return to full normal duties. Ask the team member when he/she believes they will be able to return to work, and whether that would be on normal or restricted duties. Spell out the impact on the business of their absence/incapacity. Consider whether the period of incapacity/absence is acceptable and whether you believe the medical evidence in support is clear and reliable. Once you have received the medical evidence meet with the team member to discuss the evidence and decide what to do about their ongoing absence. Before doing so be clear how you will cope with any ongoing absence and how long you believe you can continue without the employees services. Factors you should take into account include;
- How long is the expected absence and how certain is the prognosis of a return
at the end of that period? - Does the team member hold a key role that can’t reasonably be covered for the
likely duration of absence? If so, a short period of tolerance is appropriate. - How long has the person been employed. Long-standing relationships usually require
a more tolerant stance. - Did you know of the incapacity/potential incapacity when you hired the team member?
(If so more tolerance might be reasonable) - Did we contribute to the situation (i.e. work related accident or stress)?
- Is there or alternative work during rehabilitation?
If the prognosis is that the absence is likely to be ongoing, terminating the team member’s employment on notice will be justified. Take a break to consider your decision.
3. Requiring a medical opinion: Where there is doubt as to the team members’s medical condition, you are obliged to ascertain the facts before dismissing the team member. In some cases, a specialist opinion may be required so you are “reasonably informed” before making your decision. If you have not carried out a proper inquiry, then the dismissal may not be justified. It will usually be necessary to require the team member to submit to a medical examination. We confirm this requirement to the team member with a requirement for medical assessment – letter. Give the doctor (theirs or ours) a request to medical practitioner letter and get the team member to sign a authority to provide medical Opinion to employer letter. You should also allow the team member to bring forward additional medical evidence or opinion and we will pay for the cost of the medical examination. Refusal to get an independent assessment: If the team member refuses to see the medical practitioner or an independent specialist, you can seek the team member’s consent to write to the team member’s doctor, seeking answers to general questions in relation to the medical prognosis and the likelihood the team member will return to work within a reasonable period of time. In most cases, team members consent to this request as overall, it is in their interest to get you the relevant facts prior to your decision on their ongoing employment. If the team member declines to submit to examination, they cannot subsequently complain of unfairness if you then take action based on only the information already to hand. If, after balancing the needs of the business and factors relating to the team member, it is not practicable to keep the position open meet with the team member. Explain the situation and give them notice of termination using the notice of termination for medical incapacity letter in accordance with their employment agreement.
4. If, you conclude you are able to handle the absence advise the team member. Put in place regular monitoring including, if the absence is to be a lengthy one, regular medical updates provided by the team member. If the expected return does not eventuate and there is evidence the team member will not return to work, or can’t do so in an acceptable additional time period, then you can take the decision to terminate employment on notice. If there is uncertainty about when the team member will return, go back to step 2. In reassessing the situation you are entitled to seek your own medical opinion. You are also able to look at the whole period of absence and determine whether the impact on the business of the additional period of absence is acceptable or whether employment should be terminated.