In relation to long-term absences, what is an appropriate timeline for employers wishing to evoke the disciplinary process?

Seamus: Well, again, just whenever we were talking briefly before, we were talking about some cases that we were aware of as to how long the sickness absence had been. It really shouldn't be at a point where absences are happening over a number of years.

Yes, it depends on the difficulty or the problem that the employee is incurring. If it's one of a medical nature, it is about keeping on top of that from a point of view of welfare meetings, the appropriate medical information. That will provide the employer with insight.

But the law also does say that if you're in a contract of employment and that contract is for you to provide services to your employer, and if you're failing to provide those services because of your inability through your health, there is the right for the employer to at some point sever the contract. There would be a frustration of the contract because the employee can't fulfil their end of the bargain, essentially. I mean, that's simple contractual law, but we do need to be careful in relation to that approach.

There's some of the case law that refers to this aspect of . . . Definitely, any decisions to dismiss have to be reasonable. And one aspect that I always like to look at is, "Can the employee return to work? And can they do so in the foreseeable future?"

If the report is saying, "Yes, they can return to work but it's going to be six months", I think you need then to look at your business and decide whether or not the business can accommodate the continued absence of the employee for six months.

In most cases, I would have thought that a business can do that. But if realistically they're saying it's going to take a year and a half, at that point, are you then saying, "Well, look, that's going to cause me difficulties in terms of my business operating. It's not within the foreseeable future at that point, and should I be taking steps here to look at terminating the contract of employment?"

Obviously, any termination that you undertake, you have to follow the statutory procedure. Don't miss out on that just because you get a medical report that says, "The employee is not set to be able to return to work in the short term or in the foreseeable future". Make sure that you follow that statutory procedure.

And then you're really into looking at all of the alternatives to dismissal before you finally get to the point where you would be at a position of saying, "We've exhausted that process".

So some of the things you were talking about there, Christine, in relation to looking at alternative duties, alternative roles, amendments to the role itself, whether there can be a career break that can be given in the meantime to provide time for the employee to get well again. Those sorts of options all need to be considered.

And certainly, if you end up at a tribunal . . . Part of my seminar that I provided was really looking at this from the stance of what a tribunal would look at and would look for. It's about being able to justify and be clear with the tribunal why the employer has to make that decision.

And key within that also is the fact that the employer is entitled to say, "What is the impact of the absence upon the business?" And if there is that detrimental impact upon the business, it will improve your ability to move the dismissal. But you need to be able to justify and show that and be clear about that with a tribunal if you get to that point.

Christine: Yeah, I think my view was always that anything outside normal coughs, colds, general seasonal stuff, have in the back of my mind an eye on it. Then when it starts to turn into a month rather than a couple of weeks' absence, which would be more normal, I suppose, then I would start to have that on my radar to look at.

But I think if you have good communication with your employees throughout any type of illness, it's going to make this much easier.

So if it's the norm to check in with someone and say, "How are you doing?" then if a long-term absence issue comes up and you're doing that as good practice, then it's not going to look unusual or like you're picking on somebody. So I think the communication aspect of it is really good.