We have a number of staff on long term unpaid sick leave, in some cases in excess of 2 years. What approach should be adopted in relation to ceasing their employment? And what are the pitfalls in doing this?

When ceasing an employee’s employment on grounds of incapability or incapacity, the employer may face exposure under:

• (i) the Unfair Dismissals Acts 1977 and 2007, on the basis that the dismissal itself was unfair,
• (ii) under the Employment Equality Acts 1998 to 2011, on the basis that the dismissal was discriminatory on grounds of disability, or;
• (iii) potentially under civil law, for example, wrongful dismissal.

Under the Unfair Dismissals Acts 1977 to 2007, an employer may dismiss an employee on the grounds of incapability if the employee is incapable of performing the work which they were hired to do. The employer will be required to demonstrate that there is a reason for terminating