A
visitor to my website asked: ‘We are in a position where we may have to
medically board two staff members but cannot find sufficient information
regarding this subject on the internet…’
One needs
to consider Schedule 8 of the Labour Relations Act which sets out the procedure
for medical boarding / incapacity. If you are considering getting rid of a
staff member because of incapacity caused by ill health or injury, there
are steps that you need to follow so that the employee doesn’t cry ‘foul!’ Contact me if you need guidance.
(1) Incapacity
on the grounds of ill health or injury may be temporary or permanent. If an
employee is temporarily unable to work in these circumstances, the employer
should investigate the extent of the incapacity or the injury. If the employee
is likely to be absent for a time that is unreasonably long in the
circumstances, the employer should investigate all the possible alternatives
short of dismissal. When alternatives are considered, relevant factors might
include the nature of the job, the period of absence, the seriousness of the
illness or injury and the possibility of securing a temporary replacement for
the ill or injured employee. In cases of permanent incapacity, the employer
should ascertain the possibility of securing alternative employment, or
adapting the duties or work circumstances of the employee to accommodate the
employee’s disability.
(2) In
the process of the investigation referred to in subsection (1) the employee
should be allowed the opportunity to state a case in response and to be
assisted by a trade union representative or fellow employee.
(3) The
degree of incapacity is relevant to the fairness of any dismissal. The cause of
the incapacity may also be relevant. In the case of certain kinds of
incapacity, for example alcoholism or drug abuse, counselling and
rehabilitation may be appropriate steps for an employer to consider.
(4) Particular
consideration should be given to employees who are injured at work or who are
incapacitated by work-related illness. The courts have indicated that the duty
on the employer to accommodate the incapacity of the employee is more onerous
in these circumstances.
Any
person determining whether a dismissal arising from ill health or injury is
unfair should consider—
(a)
whether or not the employee is capable of performing the work; and
(b)
if the employee is not capable—
(i)
the extent to which the employee is able to perform the work;
(ii)
the extent to which the employee’s work circumstances might be adapted to
accommodate disability, or, where this is not possible, the extent to which the
employee’s duties might be adapted; and
(iii)
the availability of any suitable alternative work.
