From a legal perspective the employment relationship is based on the team member providing their labour for the benefit of RLC, with consideration for the team member being the wages payable.  If the work cannot be performed due to the absence of the team member, then the whole purpose of the relationship is lost despite any moral issues regarding preservation of income for the team member. Ultimately, in cases of protracted absence we are legally entitled to terminate the relationship because the ongoing medical incapacity 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 team member has a reasonable time in which to return to work. Each case will be judged on its merits taking into account the factors listed below.

Consider these factors before determining that a contract of employment has been “frustrated” by the team member’s absence.

Where the prognosis is that the team member is unlikely to be able to return to normal work in the foreseeable future, you should assess the situation to determine whether or not the job is to be kept open. Consider:

• The nature of the employment.  Team members who occupy a key post may need to be replaced earlier than other team members. Where the team member holds a key role that cannot reasonably be covered during their absence by way of reallocation of duties or filled on a temporary basis, you are likely to be justified in taking action earlier than may otherwise be the case.
• The nature of the illness or injury.  How long it has been ongoing, and the prospects of recovery. If the prognosis is that the team member is unlikely to be able to resume full duties it may well be appropriate to start the process of terminating employment on notice.
• The period of employment.  A long-standing relationship is less easily destroyed than one of short duration. Where the employment relationship has been of a lengthy duration it is reasonable to expect that you would hold the team member’s position open for a longer period of time than for a recent hire.
• Were you aware of the particular health problem when the team member was hired?  If you were aware of the illness or injury at the time the team member was engaged then it could well be argued that the team member is being discriminated against as a direct result of their particular illness or disability. Advice should be sought in such cases before proceeding with a termination.
• In the case of medical incapacity, should you, in fairness, simply absorb the loss?  In other similar cases have you retained team members with protracted absence due to illness or injury? If so you may have created a precedent that the team member could reasonably expect to be applied in their circumstance.
• Should you absorb the loss in a case where the sickness resulted from the work itself, or from a work-related accident, for which Council may be liable?  Seek advice as to what conditions may be applicable prior to considering termination a team member’s employment.
• Is there alternative work available which the team member concerned could do? Consider whether there are suitable alternative positions available which the team member could reasonably undertake as part of the team member’s rehabilitation where that is supported by medical advice.

Where a minor illness or series of minor illnesses causes intermittent absence, any requirement for a formal medical examination by RLC may become unrealistic, especially if the transient nature of the symptoms and complaints renders such an investigation not worthwhile.

In these situations talk to the team member. Make clear your expectation that they work the hours they have contracted and that you expect them to reduce their level of absence. Ultimately, we can terminate employment because the overall level of absence is unacceptable even if in each absence there was a valid medical reason. Talk to Organisational Development and Capability about the process to follow.

For the member, this means regularly communicating their general state of incapacity and their medical prognosis for a return to work. This may mean a return to their previous duties or to alternative duties to suit the circumstances.

For reasons of personal and medical privacy, it may not be appropriate for a team member to make complete disclosure of all information relating to an injury, illness or other disability. However, experience in a number of cases has shown that issues of privacy can be accommodated whilst still disclosing to RLC all necessary information to enable us to assess what action may be necessary.

Once you have accessed all the relevant information, consider whether you are prepared to keep open the team member’s job for the indicated period of time. Make a decision balancing fairness to the Team member and your reasonable business requirements.

Clearly show that inquiries have been made as to likelihood of the team member returning to work. Disclose to the team member your honest assessment of the consequences of the team member’s absence. Where appropriate, include a reasonable time scale for the team member to return to work. Advise what the consequences will be, in the event that such a return is not made in that period. Where it is obvious that the team member will be away from work for a greater period, address the situation promptly.

For example, if you are considering dismissing the team member as a consequence of their prolonged absence, you should make it very clear to the team member.

In some cases, dismissal for sickness or other incapacity might amount to unlawful discrimination on the grounds of disability under anti-discrimination legislation. Seek advice from Organisational Development and Capability to ensure that the termination is not challenged by the team member as being unlawful. This can usually be avoided by communicating your concerns to the team member and taking sound medical advice from a specialist medical adviser.