Earlier this month, we looked at the key considerations for employers managing high levels of short-term sickness absence. Although long-term absence presents similar challenges for employers, a different approach is required.
Don’t ignore the situation
Employers are often wary of dealing with employees who have been off work due to sickness for a long period of time, usually for fear of saying or doing the wrong thing. Although cases of long-term absence must be handled sensitively, it is important not to let the situation drift as this can make it harder to act at a future date. All absence should be regularly reviewed but in cases of long-term absence it is important to regularly assess the impact of the employee’s absence on the business whilst also keeping in contact with the employee to assess their ongoing state of health.
Follow your policy
Before starting any absence management process, it is important to check the Company’s sickness absence policy (if there is one) and to follow the steps set out within it. This will help ensure the fairness of the management process.
Understand the prognosis
In general, cases of long-term absence are more likely to require further investigation into the medical position than cases of short-term absence. It is important that the employer understands the true medical position, in particular how long the absence is likely to last, when the employee might be fit enough to return to work and whether the employee is suffering from a disability as, if so, the employer is under a duty to make reasonable adjustments and not to discriminate.
The employer should consider what medical evidence is required to answer these questions. This could include obtaining a medical report from the employee’s own doctor, consultant or specialist, or alternatively requesting that the employee is examined by an independent specialist doctor or occupational health expert, usually at the employer’s expense. It is a good idea to check the employee’s contract to see if there is a contractual right to ask them to undergo a medical assessment.
Remember that when obtaining a medical report, the Access to Medical Reports Act 1988 should be followed, which includes:
- giving the employee a statement of their rights
- obtaining the employee’s written consent to the examination and preparation of the report
- giving the employee sight of the report before the employer; and
- giving the employee the ability to request changes to the report
Where a medical report is obtained, the employer should meet and discuss the report with the employee before taking any action in respect of it. If the medical report recommends adjustments, then the employer should consider these and implement them unless there are clear reasons why it would not be practicable to do so.
Consult with the employee
In cases of long-term absence, it is well established that, as well as getting the up to date medical position, an employer should:
- Consult with the employee
- Consider the availability of alternative employment
- Consider whether it is reasonable to keep the employee’s job open any longer
In particular, the employer should discuss with the employee whether they can return to their previous job either without adjustments or, if with adjustments, what these would be and whether they can in fact be made or, if not, whether there are other alternatives roles which might be suitable. Full consideration should be given to any ideas put forward by the employee. It will be for the employer to decide whether alternatives or adjustments are possible or, if not, to explain why this is the case. It is important that all avenues for assisting the employee in returning to work are explored.
If there is a foreseeable return to work, the mechanics of a return to work programme should be discussed and agreed. This could include the employer seeking support from government agencies or charitable bodies to help with making reasonable adjustments.
Remember that if it is difficult for the employee to attend work for a meeting, then adjustments should be made, for example finding an alternative venue or meeting at the employee’s home. Where the employee is seriously ill or disabled it may also be appropriate to allow them to be accompanied at any meetings by a friend or family member.
How long an employer may be reasonably expected to wait for the employee to return will depend on the particular facts of each case, bearing in mind matters such as the employee’s job role and illness as well as the size of the employer’s organisation. An employer should consider the cause of the absence, the current treatment plan and the likely date of return. The employer should also discuss with the employee whether there are any medical reviews scheduled and whether any other treatments are proposed. The answers may well mean it is reasonable for the employer to wait for the outcome before making any decisions regarding the employee.
If there is no foreseeable return to work, or the employee will never return no matter what reasonable adjustments could be made, and this is causing genuine difficulties for the employer, then dismissal on grounds of capability can be considered. This will need to be discussed with the employee in a sympathetic manner, explaining the need to balance the employee’s position with that of the employer. For example, the employer should consider whether the employee might qualify for permanent health insurance or an ill-health pension and assist the employee in contacting the relevant providers before any decision on dismissal is made. Indeed, an employee usually cannot be dismissed on capability grounds if they have the benefit of permanent health insurance (i.e. they are currently receiving benefits under such a scheme or are in a deferred or waiting period). Specialist advice should always be taken in these circumstances.
If there are no other options to be explored, the employee should be invited to a formal meeting to discuss the situation and seek their views before any final decision is taken. The employee should be warned of the potential outcome of the meeting and their right to be accompanied by a trade union representative or a colleague. The employee should also be sent details of their absence, the effect it has had on the business, any medical evidence relied on and any adjustments already considered in advance of the meeting.
At the meeting, the employee should be able to put their case and any mitigating circumstances. If new information emerges, this should be investigated further before a decision is taken. Remember that dismissal would be on notice and that in some circumstances the employee may be entitled to full pay during the notice period even if they have exhausted their sick pay entitlement.
Be alive to potential risks
- Medical conditions which give rise to long term absence have a higher risk of being deemed disabilities in the legal sense. Employers should therefore take care to consider whether there are any reasonable adjustments which could enable the employee to return to work in some capacity in the foreseeable future or else risk breaching the duty to make reasonable adjustments under the Equality Act 2010. Employers should also be mindful of other potential disability related discrimination claims
- Although capability is a potentially fair reason for dismissal, it is important that a fair procedure is followed and all alternatives to dismissal considered to avoid a finding of unfair dismissal
- In most cases it will be an unfair dismissal if an employee is dismissed whilst still entitled to or in receipt of Company sick pay
- Permanent health insurance schemes may also prove a bar to dismissal due to capability
- Whilst contractual procedures are rare, if an employer has a contractual sickness absence policy, this will need to be followed to avoid the potential for a breach of contract claim.