Managers often struggle to handle employees' long-term sickness absence appropriately. Here are our tips for avoiding the common pitfalls.
1. First things first, monitor absence
It is important for employers to have an accurate picture of the level and patterns of sickness absence across their organisation so that problems can be identified and addressed consistently. Sickness absence needs to be properly recorded. It is advisable to have separate categories for recording disability-related absences and pregnancy-related absences to avoid falling foul of discrimination law.
2. Keep in touch with the employee
Line managers are usually the first people to be contacted when an employee goes off sick so they need to understand the employer's reporting procedure and what information the employee should be providing. Initially this is likely to be the reason for absence and likely duration. For any longer period of absence, the manager should hold regular meetings with the employee (by phone if not face-to-face) to keep track of the prognosis. File notes of conversations or of telephone messages left should be kept. Ideally conversations should be followed up with letters to confirm what was discussed and next steps agreed. Channels of communication should be kept open by managers and matters should not be allowed to drift.
3. Obtain up-to-date medical evidence
Where an employee's absence levels hit unacceptable levels, the employer should obtain up-to-date medical evidence. Reports should establish the reason for the absence, the prognosis and whether the employee is likely to be able turn to work, either in their original role or in an adjusted role, in the foreseeable future. It is not always easy to get doctors to make a firm pronouncement but employers should go back and ask the relevant questions again if the report is not decisive. Ultimately, it may be that a doctor is unable to give a conclusive opinion but there is no harm in trying to push them for a firm view.
4. Get a second opinion
Depending on the illness in question, it may be worth requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. The aim is to obtain a more detailed opinion on the employee's ability to return to the particular working environment or their suitability to carry out specific roles which are available. Remember that under the Fit for Work service there is now the option of a free referral for an occupational health assessment for employees who have reached, or whose GP expects them to reach, four weeks of sickness absence.
Sometimes, employees will refuse to co-operate with requests for medical examinations. Employers should consider whether they have the right to require employees to attend such appointments in the employment contract or absence policy. A failure to follow such a requirement could be a conduct issue.
Employers should, however, be wary of relying on a specialist report without question. Even if an occupational health expert concludes, for example, that an employee is not disabled in the legal sense, it is important to consider all the available evidence. The responsibility is on the employer to decide whether the employee is disabled and whether the duty to make reasonable adjustments has arisen.
5. Consult the employee
Once an employer has the relevant medical information, they should meet with the employee to discuss the medical report and consult with them before taking any action. Managers should consider whether there is any event which might change the prognosis in the near future, such as the employee attending a consultant's appointment or having surgery. If there is, then it is likely to be reasonable to wait for that event before assessing the situation again and making any final decision.
6. Rehabilitate the employee back to work
Where an employee is signed as fit to return to work following a prolonged period of absence, adjustments may be needed to assist their return. Managers should also be mindful of the legal duty to make reasonable adjustments where an employee has a disability. The extent of such adjustments will depend on what is reasonable in all the circumstances but could include a phased return to work, varied start and finish times, reallocation of duties or the provision of certain equipment or software. If the employee tries to return to work before their current sick note expires this could present a health and safety issue. Managers should therefore obtain medical advice and conduct a risk assessment prior to sanctioning their return to work.
7. Weigh up the options
Where an employee's level of absence is no longer sustainable, managers should consider whether any adjustments to the employee's current role would enable them to return to work, or whether any alternative roles are available. If they appear unable to work and unlikely to return in the near future, then managers should consider whether they may qualify under any permanent health insurance or ill-health pension provisions that are in place and help them to contact the relevant provider, before considering whether dismissal on ill-health grounds is the only option.
8. Consider the impact on the business
Before making any decision to dismiss on ill-health grounds, managers should consider the effect of the pattern of absence on the employee's colleagues, department and the business in general. In particular, managers should consider the likelihood of continuing absence and its impact, including whether it is possible to appoint a temporary replacement. Such considerations will be important in deciding how long to wait before dismissing on ill-health grounds.
Managers should carefully consider all the information available to them to decide whether the time has come to dismiss an employee with unacceptable levels of absence. This will depend on the employer's policy, the amount of absence, the impact 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. There is no legal requirement to wait for the employee to exhaust their sick pay entitlement before considering dismissal.
10. Notice pay
In the event that a decision is taken to dismiss an employee on ill-health grounds, the employee will still be entitled to notice. Managers should remember that employees absent on sick leave have additional statutory rights where the employer only has to give statutory minimum notice to terminate the contract. In these circumstances, the employee is entitled to receive full pay during their notice period even if they have exhausted their rights to statutory or contractual sick pay.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.