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In Sickness and in Health
What rights do employers have to terminate a contract of employment on the grounds of an employee’s incapacity?
Colette Hunt, English Solicitor and Sarah Nibbs, Legal Assistant at Crill Canavan look at an employer’s rights and obligations under the Employment (Jersey) Law 2003.
The question of sick pay:
Jersey employers are not legally obliged to have a sickness policy, although it is common practice for most businesses to provide some contractual entitlement to sick pay.
Provided that the employee produces a certificate from a medical practitioner, they should receive sickness pay for the period that they are entitled to, according to their terms and conditions of employment. A prudent employer will give the employee advance notice of when this period is coming to an end and inform them of when they will cease to receive pay.
Is it possible to terminate someone’s employment if they are claiming compensation?
The fact that an employee is seeking compensation for personal injury is not a valid reason to terminate their employment. An attempt to do so is likely to result in unfair dismissal proceedings being initiated in the Jersey Employment Tribunal.
Where the injury is caused by an accident at work, a thorough investigation should be launched. If it is found that the accident was caused by a fundamental breach of the employment contract on the part of the employee, then the employer is entitled to dismiss for gross misconduct.
Can the employer receive compensation for an employee’s injury when sustained outside of the workplace?
Although the injury happened outside of the workplace, any sick pay obligations should be paid accordingly. However, in the event of an interim or final compensation payment, from a third party, the employer may be reimbursed for the amount paid in sickness benefit, if a clause had been included within the contract or the terms and conditions of employment, stating that the employee is obliged to repay any wages paid during an absence following an accident.
The employer should also be prepared to keep the employee’s position open for a reasonable period to assess whether they will be able to return to work.
What should be done if an injured employee is able to return to work but not able to resume all their former duties?
Most importantly, terminatingemployment on the grounds of medical incapability must be handled sensitively and correctly to avoid a claim for unfair dismissal.
In situations where an employee is only able to perform a limited amount of their former duties, a reasonable period should be allowed to elapse after their initial return to work to assess whether any further improvement in their performance is likely.
If, after this assessment period, the employee is still unable to resume their previous duties and the employer believes that termination of employment is the only way forward, then they should approach this in a careful manner.
Firstly, the employer should obtain the employee’s consent to contact their GP and seek aprofessional opinion as to whether any further improvement is likely. If the employee’s performance is unlikely to improve, the employer should arrange for the employee to be examined by an independent doctor, who should know the duties and tasks that the employee is no longer able to perform.
The importance of consulting independent medical opinion was highlighted in a recent tribunal ruling. In Veloso v Jersey Dairy, the Tribunal noted the failure of the Dairy to obtain a second medical opinion as “important”. It considered that decisions to dismiss on medical grounds wouldnot be reasonable unless the employer has all the relevant facts which are either known, or could reasonably be discovered, at the time the decision is made.
Jersey Dairy had obtained a report from their companyDoctor (a GP, not a specialist) and a further verbal report (which “crucially was more specific when received in writing some five and a half weeks later”) from the same person. The Dairy also “steadfastly ignored” the employee’s request of a further examination.
A prudentemployer will also consider whether they can offer the injured employee an alternative position or lighter duties, on a short term or permanent basis. Documentary proof of such consideration is likely to be found to constitute reasonable conduct.
How long should the employer wait to assess the extent of the recovery?
The employer should ensure that the employee is kept fully informed of any progress as effective communication will prevent damage and mistrust from arising. If a replacement has to be appointed to cover the workload, the employer shouldinform the absent employee of this. Each case has to be judged on its own merits and although some degree of certainty is needed, it is important to leave room for flexibility as it can be dangerous to set a precedent.
Once the decision to terminate the employment has been made, the employee is entitled to be given the minimum notice period or paid wages in lieu of the notice. In this case, the amount due must be calculated correctly and explained clearly to avoid this being disputed.
When dealing with issues of sickness and injury, it is vital that the employer adheres to the requisite procedure regarding termination, to avoid being criticised and/or financially penalised by the Employment Tribunal. In practice, this is not always straightforward and if there is any doubt, legal advice should be sought early on to avoid costly mistakes.