Long term sickness absence requires careful management by employers. It is a balancing act between supporting the employee’s recovery while minimising operational disruption and mitigating risk of claims, if it ultimately leads to dismissal. Absence management should be considered in two parts: dealing with the employee’s absence from work and then managing their return to work. Only where such efforts have failed and been exhausted should dismissal be explored.
In this article, we review the key steps to manage long term sickness absence fairly and effectively.
What constitutes long term absence: Long term sickness is usually regarded as a period of sickness absence lasting more than four weeks.
Maintaining Contact during absence : Managing absence effectively requires a proactive approach from line management. Throughout an absence, line managers should carry out regular reviews of the absence, including the duration of absence, the status of the employee’s health, updates on a potential return to work and any steps for the employer to take to support with the return. Managers should make reasonable contact with absent employees, on a supportive level to check in on their health progress but also on a practical level to allow managers to organise and maintain cover effectively. This can however be a delicate balance to achieve for managers who may feel uncomfortable ‘disturbing’ employees who are off work ill, yet do not want their employees to feel isolated or forgotten. It would be wise at any early stage to agree, in consultation with the employee, to ask how they would like contact to be maintained and how often. It is also important that the employee understands their obligations to keep their employer updated during a period of absence. This will include ensuring that continued absence is covered by a ‘statement of fitness for work’ setting out the period covered and the reason for the absence. The employee should understand the implications of failing to maintain contact with the employer during absence and submit up to date medical certificates, as it could be treated as an unauthorised absence under the company’s disciplinary procedure.
Medical Opinion In managing cases of long-term sickness, it is important to understand the nature of the condition, its impact and the prognosis. This is an area in which employers will often rely on medical advice and recommendations from the employee’s GP or specialist doctors, and from occupational health. Employers must obtain consent from an employee in order to seek a report from occupational health or seek information from the employee’s own doctor. In seeking and handling medical information, employers should be mindful of their duties under the Access to Medical Reports Act 1988, and the GDPR. With respect to sickness absence that is as a result of a disability, consideration should be given to making ‘reasonable adjustments’ under the Disability Discrimination Act 1995 (DDA). These may include adjustments to the employee’s role, workplace or working conditions to assist with their return to work. This can be a complex area for employers to navigate and Line managers should be encouraged to investigate the reasons for absence, including through discussion with the employee to understand the nature and extent of any condition, and by obtaining medical advice. A mishandling of absences of this type could expose the employer to a risk of discrimination complaints, so it is important to manage this carefully.
Managing return to work Returning to work can be daunting for employees on long term sick leave. A return-to-work interview focused on the wellbeing of the returning employee and development of a personalised plan to support them can help. Any return to work should be planned and agreed with the absent employee. In order to facilitate a return to work, employers may need to consider options such as phased return, flexible working or alternative roles in the organisation, and remembering that trialling or offering these options may be considered a reasonable adjustment if the employee is disabled. To support with an employee’s integration back into the workplace, employers should also consider updating the employee on important changes and developments which have happened while they were out of the workplace, and in certain circumstances a period of re-training, buddying and/or additional line management support may be beneficial. Risk assessments may need to be updated to ensure the working environment and equipment are appropriate.
Record Keeping As with any absence or process in the workplace, the importance of accurate and timely record keeping cannot be understated. It not only provides evidence that procedure has been followed but provides a written account of what has been discussed and agreed at each juncture of the absence, which can be helpful in the event of future disputes, including challenges to the fairness of a dismissal. In managing long term absence, a note should be taken of any well-being discussions with the employee during the course of the absence, and in all cases a return-to-work interview should be documented. Where absence triggers a formal procedure, a full note of all meetings should be taken and outcomes recorded in writing to the employee.
Dismissal for ill-health In some cases, the cause of a long-term sickness absence may be such that the employee is not expected to be fit to make a return to work at any time in the foreseeable future. In these circumstances, an employer may be able to fairly dismiss an employee on capability grounds. When considering fairness in a dismissal for long term absence, the process should involve elements of consulting with the employee, examining the up to date medical position, and considering whether there are alternatives that could avoid a dismissal outcome including consideration of alternative duties and redeployment. In assessing the overall question of fairness, a Tribunal will also consider how long the employer could reasonably have been expected to keep the job open for the employee. The following factors are considered to be relevant to the question of how long an employer should be expected to wait:
An employer must be able to demonstrate that a fair procedure was followed, including considering adjustments and re-deployment before terminating employment, and giving clear reasons why the continued employment of the employee in the circumstances was no longer sustainable.
Employers should not forget the requirement to follow the statutory 3 step dispute resolution procedures, which applies where dismissal or other disciplinary action is contemplated. Employees should be provided with the right to be accompanied to formal meetings. Depending on the nature/reasons for the absence, employers should be open to considering adjustments to the process, and may be under a legal duty to do so where the employee concerned is disabled. For example, this may include:
Also, where it is possible that an employee may not be fit to return to work, the formal process should consider any benefits an employee may be entitled to in circumstances where they are considered no longer fit for work. This may include medical retirement under a pension scheme or cover under a permanent health insurance scheme.