Employees’ continued inability to work and absence causes headaches for many employers. The law provides for incapacity arising from ill-health or injury which is recognized as a legitimate reason for terminating an employment relationship. An employer is not obliged to retain an employee who is permanently incapacitated, specifically not if the employee’s position or duties cannot be adapted to accommodate both parties.
It is important to remember that an employer cannot just dismiss an employee on the grounds of incapacity without a proper investigation being conducted. The “prescribed process” also addresses a number of aspects which must be considered before an employer can dismiss an employee on this ground.
In the case of General Motors v NUMSA obo RUITERS (2015), the Labour Appeal Court provided guidance on the substantive fairness of a dismissal based on incapacity due to ill health, when it said that the question to be answered is whether the employee can fairly be expected to continue in the employment relationship, also bearing in mind the interests of the employer and the “equities” of the case.
Incapacity can be described as an employee’s inherent inability to perform his/her duties as set out in their employment contract. Item 10 of the Code of Good Practice: Dismissal stipulates that a distinction should be drawn between temporary and permanent incapacity as follows:
If an employee is temporarily unable to work, the employer should investigate the extent of the incapacity or injury. If an employee is likely to be absent for a period that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal to try and accommodate the employee.
‘Reasonable Accommodation’ is defined in section 1 of the EEA to mean ‘any modification or adjustment to a job or to the working environment that will enable a person with a disability to have access to, participate in or advance in employment’.
Item 11 of Schedule 8 of the Code of Good Practice states that any person determining whether a dismissal arising from ill-health or injury is unfair should consider whether the employee can perform the work. If the employee cannot perform the work, then the following should be considered:
- The extent to which the employee can perform the work.
- The extent to which the employee’s work circumstances might be adapted to accommodate the disability, or where this is not possible, the extent to which the employee’s duties might be adapted; and
- The availability of any suitable alternative work.
If the employee’s duties cannot be adapted in such a way that the employee is able to fulfil those duties, and no alternative position is available, then dismissal may be justified. It is possible that it may be acceptable to offer an employee a lower position with a lower salary in order to accommodate the employee and to prevent a dismissal.
As incapacity cases may involve many intricacies, employers ae best advised to consult a reputable HR- and labour law practitioner.