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Employment Law Update | Sickness absence - a pain in the neck! | Part 2
Managing sickness absence is a topic that we are regularly asked to advise on.
It’s a somewhat broad topic so we have split this guidance into two. This note, part two, deals with long-term sickness absence issues. Part one deals with short-term sickness absence issues and can be access here.
Part 2 - Long-term absences
The approach to dealing with long-term sickness absence is different to that of short-term absence. The main issue will be the fact that the individual is likely to be “disabled” within the meaning of the Equality Act and so you need to ensure you balance your duties in that regard when dealing with long-term absence.
1 Record keeping
As with short-term absences, the starting point is always the paper trail and your record keeping. This isn’t so you can apply the Bradford Factor, as that is only likely to backfire.
Instead, the initial approach should be to ensure that your employee is seeking the required (and appropriate) medical advice and following that guidance. HR professionals and employment lawyers are very rarely also medical experts, so you will be reliant on the medical evidence you can gather.
Initially, and throughout, it will be case of recording the amount of time off, the reasons given, notes from meetings, medical reports etc.
2 Keep in contact
Initially, your employee will be off work and so you ought to keep in contact with him/her to try and understand more about the illness, medication, likely return to work and prognosis. It’s unlikely the GP will sign an employee off for a long period at the outset, and so long-term absence is likely to start with weekly/fortnightly fit notes.
Some illnesses come with a degree of sensitivity, so it may not be appropriate to try and find out all this information at the outset.
Where the absence is long-term, you should ensure there is, at least, regular email/phone contact with the employee to see how they are and to understand if you can do anything to help and support them. Through this contact you will gain a better understanding about their situation, which is likely to help a return to work.
3 Meeting
Ideally, you will meet with your employee to understand more about the diagnosis and prognosis. If a meeting is refused or proves to be unhelpful, or you just want to ensure you are doing things properly then, after the meeting, you may want to consider seeking an independent medical report.
If the employee is disabled or depending on the reason for the absence, you may need to consider a home visit or meeting off-site. You should also allow the employee to be accompanied.
As ever, there ought to be a witness from your business as well as the person conducting the meeting, and detailed notes should be taken and shared with the employee.
4 Medical report
Generally, medical reports are best sought from professionals other than the employee’s GP. This isn’t reflective on GP’s but in our experience greater detail is usually obtained from either a consultant that is taking care of your employee or, more likely, occupational health.
You need to carefully consider the questions you ask of the medical expert, as each situation will be different. These are likely to be around the diagnosis, medication and prognosis. One of the underlying benefits of securing a medical report is that it may also give you greater objective clarity as to whether your employee is disabled within the meaning of the Equality Act.
Before you can instruct a medical expert, you need to obtain your employee’s consent to do so and, ideally, your contract of appointment will require such consent to be forthcoming; if not, you should take advice on how are you contracts could be improved.
Once received, the medical report should give you greater clarity as to the situation and your options. If the report recommends further time off work, you should aim to meet with your employee to discuss that and whether there is anything you can do to encourage their return to work.
The medical report may suggest a phased return or other adjustments that can/should be made to enable your employee to return to work. Assuming your employee is disabled you are under a duty to make and consider reasonable adjustments and a failure to do so will amount to discrimination on your part. Therefore, this aspect is often key in you acting fairly and lawfully, but at a more basic level, most employers want to ensure they are doing all they can to facilitate an employee’s return to work.
5 Further meeting
Please don’t assume you only need to meet twice with your employee; the general rule is the more meetings/discussion, the better. Usually a further meeting will follow the medical report to allow you to discuss it with the employee.
The report should give you a structure to the meeting and allow you to focus on ways in which you can facilitate the employee’s return to work. As an absolute minimum, you should discuss the various adjustments and whether they are reasonable for you to make and/or if they will help the employee return to work.
There may be several further meetings assuming the employee remains off work for a further period.
With all meetings and discussions, you should adopt a supportive approach and try and establish what you can do to help facilitate the employee’s return to work.
6 Dismissal
Assuming:
a) the employee has been off for more than 28 weeks, so exhausted his/her entitlement to SSP; and
b) you have a medical report that provides an independent medical expert opinion that the individual will be unable to return in the short to mid-term (i.e. six months or more) and/or is not capable of fulfilling his/her job role; and
c) you have exhausted all and any reasonable adjustments; and
d) you do not offer income replacement benefit, or, if you do, that benefit has ended
then you MAY
be able to terminate the employee’s employment.
As ever, there is a process the you ought to follow prior to deciding to dismiss, and the decision to dismiss will crystallise the employee’s right to claim; most likely unfair dismissal and discrimination, so care is needed to ensure there are no alternatives to dismissal (phased return or other jobs).
There are many factors that will impact what steps you take when dealing with long-term absence and the ultimate outcome. Most process will cover all the above, but there are likely to be numerous other steps and considerations you need to take into account, so we encourage you to seek specific employment law advice.
If any of the issues discussed above are a concern to you, or if you would like specific employment law advice, please contact the writer, Matthew Kilgannon, via mk@kilgannonlaw.co.uk
or on 01483 388 901.
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