Introduction to this document

Notification of long-term incapacity meeting

When you reach the point that you’re considering dismissing an employee on the grounds of long-term incapacity, you will need to set up a formal meeting to consult about your proposals before taking your final decision. This is an essential requirement of general fairness.

A fair incapacity dismissal

Long-term sickness absence can be a fair reason for dismissal. However, for a dismissal to be fair in practice you will need to show that the employee’s long-term absence was a sufficient reason to justify dismissal and that you acted reasonably in dismissing them for that reason, including in relation to the procedure you adopted. Following an initial meeting with the employee to discuss the medical report and the possibility of them returning to work in some capacity, it might transpire that, in fact, the employee is not fit to return to work in any capacity in the foreseeable future. Assuming always that the employee’s absence record is sufficient, when considered in context, to justify dismissal, use our Notification of Long-term Incapacity Meeting once you reach the point where you are contemplating dismissal. This arranges a meeting with the employee and notifies them of their rights. The purpose behind such consultation is to weigh up the situation, balancing your business need to get the work done (taking into account your business size and resources and the severity of the impact on your business that the employee’s long-term absence is causing) against the employee’s need for time off in order to improve their health. Gather clear evidence of the impact that the employee’s continued absence is having on the business, such as what problems their absence has caused, including cost, business disruption, impact on other staff, impact on clients, etc. Do not assume that the outcome of the meeting will always be dismissal. You must not pre-judge the situation. Instead, act reasonably towards the employee throughout and always review whether there are any other jobs that the employee could do prior to taking any decision on dismissal. Finally, always make sure that any medical evidence you rely on is current and, if the employee presents alternative evidence that indicates they’re fit to return to work, wait a little longer so that you can investigate this new evidence. If necessary, obtain a further up-to-date medical report.

Fair procedure

Your letter to the employee should refer to the circumstances that led you to contemplate dismissing them, striking a balance between giving enough information so they can understand the basis for your proposal but without giving the impression that you’ve already made up your mind about dismissal! Our notification letter makes reference to the contents of the medical report and the discussions with the employee at the first meeting and then attaches a copy of the attendance record of that meeting. There is no statutory right for the employee to be accompanied at the meeting. However, we recommend you permit this as part of an overall fair procedure. It might also be a reasonable adjustment under the Equality Act 2010.