Long Term Sickness Absence
Every organisation must expect to experience long term sickness absence from time to time and employers should look to monitor and control this effectively as it can be a major cost to the business both financially and in terms of morale of colleagues who may be under extra pressure to cope with additional workload.
The best outcome, of course, is a successful recovery and return to work. However, this is not always possible and when dealing with long-term absence it is important to apply consistent procedures. Ultimately, when a return is not possible, then dismissal due to incapability will usually be the outcome.
General guidance cannot deal with every individual situation as each case must be dealt with according to the individual circumstances surrounding it. Consequently, professional advice should be sought before any decisions are made about whether or not to dismiss an employee following a period of long-term sickness absence. The starting point is to gather information on which you can make an informed decision on how to deal with the situation. Two main sources are:
Contact with the employee
Once it appears that the sickness absence is going to be protracted or begins to have a detrimental effect on the running of the business arrange to meet with the employee (if possible) to discuss their continuing absence. Discuss:- the nature of the illness; treatment they are receiving; advice they have received from their doctor; suggestions/ideas regarding facilitating their return to work including reasonable adjustments; the potential length of their absence; and the impact of the employee’s absence in the workplace.
Consider obtaining written permission from the employee to approach their doctor for a medical report. The employee has certain rights under the Access to Medical Reports Act 1988 (see Information Update 2013/20).
Providing consent is given, you should write to the Doctor for a medical report. The letter should include information regarding the employee’s job duties and should ask about the employee’s current situation: the nature of the illness; treatment prescribed; the potential length of their absence before being able to resume their normal duties; suggestions/ideas regarding facilitating an earlier return to work including reasonable adjustments.
Once the report is received, then arrange to meet the employee and discuss the report with them and it is at this stage that you can consider making decision on how to proceed.
Steps to follow
In summary, the steps to follow are:
- Amount of time lost
- Impact on business
- Medical report and prognosis
- Employee input and consultation
- Let absence continue
- Phased return
- Amended duties / hours on temporary or permanent basis
- Reasonable adjustments (if employee has a disability)
- Terminate on capability grounds (NB: A formal procedure must be followed, with the employee afforded their statutory rights)
- Informal discussion (to discuss return to work options)
- Formal meeting (to discuss termination on capability grounds)
- Correct procedure must be followed, with the employee afforded their statutory rights
- Decision confirmed in writing, with right of appeal
- Contractual or statutory notice will apply.
And finally - a recent case shows that the courts will expect you to:
- Keep medical evidence up to date and never rely on outdated medical evidence in order to justify a decision to dismiss.
- Consider any new medical evidence raised during procedures including at an internal appeal, and if necessary obtain further medical evidence, before reaching a final decision.
- Keep a careful note of all meetings/discussions with the employee including the medical evidence available, any potential return to work (including any support that can be offered to facilitate a return to work) and, if no return is imminent, the fact that the employee may be dismissed.
- The dismissing officer must actively consider the impact on the business of the employee’s continued absence when deciding to dismiss.
Employers with legal expenses insurance should note they may jeopardise their cover should they fail to seek advice prior to taking action against an employee.