Legally speaking: Sickness absence while on probation

Each month an expert from solicitor, Wright Hassall, takes a look at a different dilemma for small businesses from a legal perspective. This month, Rebecca Harmer, tackles probation period extensions.

Q: I’ve an employee who was on a 3-month probation period. However, when hired they failed to tell me about an outstanding medical condition and they shortly went on sick leave for two months. Am I allowed to terminate the employee’s contract because of this, or even extend the probation period?

A: The point of a probationary period is to assess whether the employee is suitable for a role. One of the most common reasons for employees not having their contracts renewed at the end of the probationary period is absence. However it’s crucial that an employer understands why they were absent before deciding whether to dismiss or extend the probation period.

sickness absence probation Proceed with caution

Although employees cannot bring a claim for unfair dismissal until they have completed two years of service, this doesn’t apply to ‘protected characteristics’. In other words, if your employee’s sickness absence during probation is as a result of an underlying disability but you dismiss them regardless, they could bring a disability discrimination claim against you.

How serious is the medical condition?

Clearly you’re hampered by the fact that the employee did not tell you about their medical condition in advance, possibly due to its sensitive nature, and neither were they in the post long enough to allow you to assess their performance. The first thing you need to establish is the seriousness of their condition and likely to occur again. You’re entitled to ask for a medical report (with the employee’s consent) but ensure you manage this sensitively; your main concern is to avoid any accusation of discrimination.

Extending the probation period

If the medical report confirms your employee’s absence is due to an underlying disability then dismissal is unwise. In these circumstances you need to assess whether reasonable adjustments can be made so the employee can return to work; this will also give you more time to establish if there are any non-disability related capability issues. Likewise, it’d be unwise to extend probation as the employee may claim this is disability discrimination.

However, if there’s no underlying disability, you could extend the probationary period in order to assess performance over a longer period of time. Of course, you’ll need to notify the employee of this, preferably in writing.

If dismissal is the right option?

If the employee is classed as disabled and it’s clear that you are unable to make reasonable adjustments to accommodate the employee’s needs, or they’re not disabled and there are performance-related issues, then you can go down the dismissal route. However, because of the sensitivity of the situation, you’d be advised to follow your normal dismissal procedures to minimise the chance of a discrimination claim.

This is a delicate situation and requires careful handling. Your main objective must be to protect the interests of your business by avoiding a discrimination claim which can be damaging, not only financially, but also reputationally.

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