Ultimately, in cases of protracted absence or reduced capacity which is medical in nature (e.g. ongoing absence or incapacity due to illness or injury) you are legally entitled to terminate employment on the grounds that the ongoing absence has essentially “frustrated” the employment contract. The law requires that you take all reasonable steps to ascertain the basis of the incapacity and its likely duration and impact on the person’s ability to work before making any decision to terminate and that the employee has a reasonable time in which to return to work. Where there is a medically based absence / incapacity and you believe a return within a reasonable timeframe is unlikely follow the steps below. Our Guidelines on Medical incapacity provide more background if required. Make sure you involve HR and your manager in the process.

1. Assemble what you know of the background to the absence/incapacity including medical certificates, leave taken or planned, impact on the business of their absence, action you can practically take to mitigate the absence etc

2. Arrange to meet with the employee to discuss the situation. xplore the reasons for the absence and the medical advice the employee has received about a return to full normal duties. Ask the employee when he/she believes they will be able to return to work, and whether that would be on normal or restricted duties. Spell out the impact on the business of their absence/incapacity. Consider whether the period of incapacity/absence is acceptable and whether you believe the medical evidence in support is clear and reliable.

Is the medical evidence clear and reliable and is the period of incapacity/absence acceptable given the persons role in the business and the impact of the situation? If the answer is ‘Yes’ then monitor the planned return. If ‘No’ then you should initiate getting an independent specialist medical opinion.

Once you have received the medical evidence meet with the employee. Before doing so be clear how you will cope with any ongoing absence and how long you believe you can continue without the employees services.. If you consider the period of absence indicated in the medical opinion can be mitigated and is acceptable tell the employee and monitor the situation.

If, after balancing the needs of the business and factors relating to the employee, it is not practicable to keep the position open meet with the employee. xplain the situation give them notice of termination in accordance with their employment agreement. Confirm the notice of termination in writing setting out the reasons for the termination and explaining why it is no longer practicable, based on medical advice, to keep the position open.

Once you have received the medical evidence meet with the employee to discuss the evidence and decide what to do about their ongoing absence. Before doing so be clear how you will cope with any ongoing absence and how long you believe you can continue without the employees services. Factors you should take into account include;

• How long is the expected absence and how certain is the prognosis of a return at the end of that period?
• Does the employee hold a key role that can’t reasonably be covered for the likely duration of absence? If so short a period of tolerance is appropriate.
• How long has the person been employed. Long-standing relationships usually require a more tolerant stance.
• Did you know of the incapacity/potential incapacity when you hired the employee? (If so more tolerance might be reasonable)
• Did we contribute to the situation (i.e. work related accident or stress)?
• Is there or alternative work during rehabilitation?

If the prognosis is that the absence is likely to be ongoing, terminating the employee’s employment on notice will be justified. Take a break to consider your decision.

4. If, you conclude you are able to handle the absence advise the employee. Put in place regular monitoring including, if the absence is to be a lengthy one, regular medical updates provided by the employee.

If the expected return doers not eventuate and there is evidence the employee will not return to work or can’t do so in an acceptable additional time period then you can take the decision to terminate employment on notice. If there is uncertainty about when the employee will return go back to step 2.

In reassessing the situation you are entitled to seek your own medical opinion. You are also able to look at the whole period of absence and determine whether the impact on the business of the additional period of absence is acceptable or whether employment should be terminated.

3. Requiring a medical opinion: Where there is doubt as to the employee’s medical condition, you are obliged to ascertain the facts before dismissing the employee. In some cases, a specialist opinion may be required so you are “reasonably informed” before making your decision.  If you have not carried out a proper inquiry, then the dismissal may not be justified. It will usually be necessary to require the employee to submit to a medical examination. Conduct this in a fair and reasonable manner, using our Requirement for medical assessment-letter to the employee Request to medical practitioner-letter and Authority to provide medical opinion to employer-letter. You should also allow the employee to bring forward additional medical evidence or opinion. And you should pay for the cost of the medical examination. Refusal to get an independent assessment: If the employee refuses to see your medical practitioner or an independent specialist, you can seek the employee’s consent to write to the employee’s doctor seeking answers to general questions in relation to the medical prognosis and the likelihood of the employee to return to work within a reasonable period of time.  In most cases, employees consent to this request as overall it is in the employee’s best interest to get you the relevant facts prior to making any decision on their ongoing employment. If the employee declines to submit to examination, the employee cannot subsequently complain of unfairness should you ultimately take action based on an assessment of the information already to hand.