An employee was hired on a fixed term contract, however, soon after they were absent on grounds of sickness and the medical certificates submitted indicate a serious mental health issue with sick leave likely to extend for the foreseeable future. A three month probationary period applies to all new employees and no sick pay is given during the probationary period. Can the company dismiss on grounds of capability whilst the employee is absent on sick leave?

In issuing fixed term contracts, employer should be aware of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002. These essentially give fixed-term employees the right not to be treated less favourably than their full-time comparators unless the treatment can be objectively justified by their employer. This extends (amongst other examples) to treatment in relation to the terms of the employee's contract, the opportunity to receive training and the opportunity to be informed of vacancies for permanent employment with the employer.

Dismissal of a fixed term employee should be treated in the same way as a dismissal of a permanent employee. It