Long-term sickness absence – nine things employers must do to avoid claims

It’s an unfortunate fact of life that people get ill and all the more unfortunate that this sometimes necessitates an extended period of sick leave from work.

Handled appropriately, long term absence is by no means an obstacle to a satisfactory return to work at the end of the sickness period. However, it’s often a problem for managers knowing how to deal with long term absence in a way that isn’t going to cause more problems than it solves.

So what can managers do? rradar solicitor Nkolika Oraka outlines nine key steps that should be taken to reduce the risk of an Employment Tribunal claim.

1. Monitoring

Without information on level and patterns of sickness absence throughout the business, managers can’t identify and address the problems that arise in a consistent manner, and without consistency, there’s the risk that an employee’s sickness could be handled in a discriminatory manner. A proper system for monitoring sickness absence should be established and maintained. Such a system should record absences related to disability and pregnancy separately so that they don’t get lumped in with other sickness absence; this runs the risk of breaches of discrimination law.

2. Maintain contact

Most organisations have a policy whereby the line manager has to be contacted and informed when an employee’s sickness leave begins. The policy guidelines should set out how the sickness should be reported and the information that the employee needs to provide when this happens; typically, the reason for the absence and an estimate of how long it’s likely to last. Hopefully, this won’t be very long, but there will be instances in which the absence is extended in its duration. If this is the case, the manager should arrange to contact the employee on a regular basis, either by phone or in person, whichever is preferable, to monitor how the sickness absence is developing and if there is any change in the likely prognosis and absence estimate. Notes of the conversations held should be recorded and kept on file – in the event that there is a disagreement as to what was said and when, these could be invaluable as a written defence. The employee should be sent a summary of what was discussed at the meeting, together with agreement on what the next steps should be. It’s important that managers make every effort to keep communication open – the longer a matter is left without contact, the harder it is to re-establish an amicable and productive relationship.

3. Medical evidence

With a good policy in place, managers can spot the point at which an employee's absence levels hit unacceptable levels. If this occurs, up-to-date medical evidence should be sought as soon as possible. Any report should set out the reason for the absence, the prognosis and whether the employee is likely to be able to come back to work, either in the role they held before their absence or a role that has been adjusted to take into account their medical condition.

4. Get a second opinion

Although the opinion of the employee’s own doctor will be valuable, considering their experience and knowledge of the employee, it may be worth the manager approaching an independent specialist doctor or occupational health expert to arrange an examination. This examination will give a more detailed view of whether the employee is able to return to the working environment where they were based previously, or their ability to carry out other roles the employer is considering for them.

Although managers may make arrangements for independent examinations with the best will in the world, employees may decide that they don’t want to go along with it and will refuse to co-operate with even the most reasonable of requests. At this point, the employer needs to look at what options are open to them regarding obtaining the co-operation of the employee. An examination of the employment contract and absence policy may reveal that the employer has the right to insist and that further intransigence on the part of the employee can be treated as misconduct.

Once the specialist report has been obtained, the employer has to consider what to do with it. It’s important to remember that it shouldn’t be used in isolation, but as part of an evidence portfolio.

5. Consultation

Armed with the medical information, the manager should arrange a meeting with the employee so that the medical report can be discussed and the employee’s opinion sought before any formal action is taken on the absence issue. The wider picture should be considered, including any events in the future that might change the prognosis. If this is the case, the process can be delayed until more definite information is available and a final decision can be made.

6. Bringing the employee back into the workplace

An employee can’t just be expected to walk back into the workplace and pick up where they left off as soon as they’re signed off as fit to return. In order to ensure a smooth transition back into full-time working, the employer will need to put some adjustments in place although adjustments are not always required. Depending on the nature of the sickness, a simple return to work meeting or catch-up may suffice. If the absence arose because of disability and that disability is ongoing, there’s a legal responsibility under the Equality Act 2010 to make reasonable adjustments in three situations:

• where a provision, criterion or practice applied by or on behalf of the employer,

• where a physical feature of premises occupied by an employer, or

• where the lack of an auxiliary aid, puts a disabled person at a substantial disadvantage compared with people who aren’t disabled.

An employer has to take all reasonable steps to avoid that ‘substantial disadvantage’.

Note the word ‘reasonable’. Factors such as the practicability of making an adjustment, the cost of doing so and the resources that the employer can access will all be relevant when a decision is made on what counts as ‘reasonable’.

Such adjustments could include a phased return to work, varying start and finish times, a redistribution of duties or providing certain equipment (including special software packages).

If a claim for discrimination arises, the courts will address the objective question of whether the adjustments put in place are ultimately considered reasonable. The advice of rradar’s expert legal advisors and solicitors should be sought if there is any uncertainty about the status of the adjustments being implemented.

It’s important to bear in mind that if the employee is determined to return to work before the expiry of their current sick note, this could cause problems with health and safety requirements. Therefore, before an employee’s return to work is approved, the manager should get independent medical advice and have their health and safety officer carry out a risk assessment.

7. Weigh up the options

Despite all an employer’s efforts, there may come a point at which an employee's level of absence is considered no longer sustainable. At this point, before any final decision is made on the employee’s future, managers should think about adjustments to the current role that may enable the employee to return to work, or the availability of alternative roles that the employee could carry out.

If the employee is unable to work and their return to work in the near future is unlikely, the manager should think about whether the employee may qualify under any permanent health insurance or ill-health pension provisions, before moving to the stage of dismissal on ill-health grounds.

8. Consider the effect on the business

There is one last thing to consider before moving to the stage of dismissal on the grounds of ill-health; what effect will the employee’s departure have on their colleagues and the business in general? Managers may need to weigh up whether it’s actually more beneficial for the business to continue with long-term sickness absence and cover the employee’s post with temporary employees, compared with the end of the staff member’s employment and their replacement with a new permanent employee, who will need to be trained, and the transitional effect on the business.

It is also worth noting the financial implication, i.e. the fact that holidays continue to accrue on sick leave so the employee will have the right to take that annual leave on their return to work or if they are dismissed they will have to be paid for all accrued but untaken annual leave which can be quite significant. In particular, they have 18 months from the end of the leave year to carry forward up to 20 days of accrued holiday.

What the employer concludes after taking all this into account will determine how long to wait until moving to the step of dismissal on the grounds of ill-health.

9. Dismissal

If the step of dismissal is being considered for an employee with unacceptable levels of absence, managers should gather all the information they can on the situation before taking the final decision. This can include, but is not limited to:

• the employer's policy,

• the amount of absence,

• the effect of the absence/dismissal on colleagues and the business,

• the employee's length of service,

• the likely prognosis and

• the ability to make reasonable adjustments or offer alternative roles.

The employer is under no legal obligation to wait for the employee to use up their sick pay entitlement before moving to the stage of dismissal.

rradarstation

rradarstation is a resource available through the AXA MLP where policyholders can access rradar’s legal advisory team over the phone or by email and web portal that provides over 1,000 articles, step by step guidance sheets, forms, sample letters and templates to download relating to running your business/organisation.