Incapacity checklist

Use this checklist to help you manage employees who are absent for a long period or are persistently absent for short periods due to sickness or injury.  Your procedure for managing sickness should be separate from your disciplinary procedure for all cases of ill health as opposed to misconduct. However, if possible misconduct has been identified, and informal counselling does not resolve the problem or is not appropriate, a disciplinary procedure should be followed.

Obtaining medical advice

Medical advice should be obtained before making a decision to dismiss an employee for incapacity. Remember to get the employee's consent before you request any medical report or examination. You should make it clear to employees that they may withhold consent - but that if they do withhold consent, you may have no option but to make decisions based on what information is available. It may also be useful to consider including a contractual term in the contract of employment obliging employees to undergo medical examinations, but do bear in mind that, even with a contractual clause, you can’t force an employee to undergo a medical examination against their will as that amounts to a civil trespass and a criminal assault. As a medical report constitutes special category personal data under the UK GDPR and the Data Protection Act 2018 because it contains personal data concerning the employee’s physical or mental health, you will need an additional lawful condition for processing the data (as well as having a lawful basis for processing it), e.g. the processing is necessary for the purposes of carrying out your obligations or exercising your rights under employment law. It must also be in accordance with an appropriate policy document you have in place, which explains both your procedures for securing compliance with the UK GDPR data protection principles in connection with the processing of such special category personal data and your policies as regards the retention and erasure of such personal data.

What if the employee is disabled?

An employee will be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out their normal day-to-day activities.  In such circumstances, make sure you consider whether there are any reasonable adjustments that can be made to facilitate the employee’s return to work.  If you do not, you may open yourself up to a claim for disability discrimination if you subsequently dismiss a disabled employee without first seeing if you could have made reasonable adjustments to aid their return.