- 7 minute read
- Last updated: 10th October 2019
Long term sickness absence requires careful management by employers. It is a balancing act between supporting the employee’s recovery and return to good health while minimising operational and performance disruption and mitigating legal risk exposure.
This article covers:
- What constitutes long term sickness?
- Managing long term sickness absence
- Early retirement due to ill-health
- Risks of mishandling long term sickness
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.
If you are dealing with long term sickness absence, it will be important to ensure you are observing employees’ rights and working within your legal responsibilities at all times. Poorly managed absence can lead to issues such as staff attrition, low morale, impacted productivity and tribunal claims for unfair dismissal or discrimination.
Long term sickness is usually regarded as a period of sickness absence lasting more than four weeks.
Where an employee takes regular periods of short term sickness absence due to a re-occurring health condition, the employer may consider the absence pattern to be equivalent to long term sickness.
For employers to take a fair and lawful approach to managing long term sickness absence, a robust and effective sickness absence policy will be critical. The policy should set out clearly what is expected both of the employee and the employer in the event of sickness-related absence. It should detail specific points such as what constitutes long term absence, how a return to work can be supported and when absence will be deemed a conduct matter.
Managing absence effectively demands a proactive approach from employers. Organisations should have procedures in place to maintain reasonable contact with an absent employee and to perform 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.
This should include input and collaboration with other relevant parties such as the employee’s line manager and occupation health and medical advisers. Professional medical advice will also be critical in gauging the likely duration of the illness and the effects of the condition on the employee’s ability to work. Employees are afforded certain rights in respect of privacy of their medical records, as such it may be advisable to take guidance on your options if an absent employee is unwilling to share records or professional medical opinion on their long term health condition to ensure you proceed with the most appropriate course of action.
Employers are expected to 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. An appropriate approach should be considered in each circumstance but could see the employee’s line manager reaching out to the employee to ask how they would like contact to be maintained, through email, phone or letter? Be open about the reasons for making contact, namely your concern about the employee’s welfare and to offer any support that is reasonable and practicable.
Return to work after long term sickness absence
For an employee to return to work after long term sickness absence, they would ordinarily need to show their employer medical advice that confirms the individual’s fitness to work, usually from an occupational health adviser, or the employee’s GP or specialist doctor.
The employer can then start to focus attention on facilitating the return to work. Employers also need to be mindful that if an employee is returning to work with a disability, they must respect their obligations under the Equality Act 2010, making reasonable adjustments to allow the employee to return. In addition, any related absence related to the disability should be recorded separately to other sickness absences. The medical evidence and professional advice may for example indicate certain measures or ‘reasonable adjustments’ that should be made to the employee’s role, workplace or working conditions to assist with their return to work. This could include a partial or adjusted return to work, or a full return to work. It is also advisable to carry out your own risk assessment in light of the medical guidance to identify any potential risks to be addressed.
Returning to work can be daunting for employees on long term sick leave. Developing a return to work plan in collaboration with the employee can help alleviate such concerns. With a plan in place before the employee’s return, there is better clarity of expectations for both the employee and the employer.
On their return to work, a formal return to work interview should be held to welcome the employee back into the workplace, to confirm the employee is fit to work and discuss any issues or concerns about their health condition and any support that may be needed from the employer with their return to work. You should also make it clear to the employee if their level of sickness is at risk of becoming a conduct issue, exposing the employee to disciplinary action if their attendance does not improve.
Dismissing an employee for long term sickness absence
Generally, return to work is seen as a more favourable outcome after a period of long-term sickness absence, because:
- It returns an experienced employee to the workforce.
- It doesn’t incur the cost of recruiting a new member of staff, which may also involve the cost and time of re-training.
- It removes any disruption caused by covering for that person’s absence, such as reallocation of workforce.
- It improves staff morale by the act of being seen to actively support an employee.
- It adds to the organisation’s reputation as a caring and professional employer.
However, the commercial reality is that long term sickness absence can also create significant disruption and resource drain for employers. In some circumstances, employers may also be concerned that the employee’s illness is being drawn out to delay a return to work.
Dismissing an employee on long term sick leave can open employers up to the risk of tribunal claims and as such, should always be considered an option of last resort where all reasonable attempts have been made to support the employee’s return to work.
Where an employee’s absences from work due to illness persist without explanation or justification, following intervention efforts such as absence triggers and verbal warnings, you may be able to handle the absences as a conduct issue that can lead to disciplinary action and ultimately dismissal.
If you are considering dismissal, you would need to show that the dismissal was justified and fair after a process of managing the absence and exploring all the options open to you.
For example, under the Equality Act 2010, you will have to demonstrate that you have taken all appropriate steps to facilitate a return to work, including looking at alternative duties, hours and alternative roles where possible. Effective record keeping of all communications with the employee and meeting notes from return to work interviews will be important in evidencing you have taken appropriate steps and showing the reasons why any proposed adjustments were discounted for practical for business reasons.
Any dismissal on the grounds of ill-health should be supported by medical evidence in particular from an occupational therapist who can provide professional opinion on
Firstly, the employer must show they have followed their sickness absence procedures fully and have kept a record of this, including the initial report of absence, to follow-up communications with the employee, medical evidence, risk assessments and the return to work plan.
Secondly, an employer should be able to show how the employee’s absence has disrupted the operation of the business, for instance, the need to re-allocate existing staff, cancellation of projects or meetings, the expense of using temporary staff.
The employer must give a reasonable amount of time for recovery. What is reasonable will depend on the circumstances of the matter. Where the employee has no clear idea on when they can return to work and the absence has lasted for a year, this uncertainty in itself, combined with the disruption caused to the business, may be sufficient reason to dismiss.
Where the employee has failed to accept a return to work plan that can be shown to be fair, non-discriminatory, and within their ability to follow, it may be that dismissal is the only outcome. However, the employer must be able to prove that the employee is being unreasonable.
Employees with a disability (or long term illness) cannot be discriminated against or dismissed by reason of their disability. This is unlawful. The employer is required to make reasonable adjustments to allow the employee to return to work.
Common errors can leave employers open to the risks if long term absence is not managed appropriately.
These can include poor record-keeping of sickness-related absence and communications, failing to comply with duties under law, compelling an employee to return to work before they are fully recovered, failing to identify and address trends or patterns in absence among the workforce.
Where an employer doesn’t follow their procedures, fails to adhere to related legislation, or in some other way incorrectly handles the employee’s sickness absence, they may well face an unfair dismissal claim. The burden will be on the employer to prove that the employee has been treated fairly, and that every opportunity was taken to return that employee to work.
Loss of valuable staff
Where a member of staff would have happily returned to their workplace and their role, but they feel abandoned due to a lack of contact during their sickness absence or harassed by what they deem to be bullying phone calls from their line manager, they may decide to hand in their notice and find a new employer who will treat them properly.
Alternatively, an employer is not willing to adjust their sick employee’s working conditions to facilitate a return to work and finds the length of recovery time required by the sick employee unacceptable. They therefore decide to dismiss them, incurring the cost and time involved in hiring a new member of staff who requires lengthy training to bring them up to the level of the dismissed employee.
Disruption to business
A key employee suffers a traumatic injury at work and is forced to take long term sickness absence. Offering them the opportunity to ease back into their role by working from home would return a valuable member of staff to a negotiations team. Their employer decides against this. Without the employee’s input, an important business deal is delayed and jeopardised.
Low morale and reputational impact
Organisations with a reputation for treating employees poorly can struggle to retain and attract employees. Ensuring fair and consistent handling of workplace issues promotes trust and a more secure and positive environment, which, in turn, supports improved employee morale.
Do you have a question about sickness absence?
An employer must be able to prove that they have exhausted all reasonable routes done their best to support the employee’s return to work. But the reality is, issues with absence management can be further complicated by other factors. Perhaps there are suspicions of an unnecessarily drawn-own recovery to postpone the return to work, or if the employee has been diagnosed with a mental health or serious illness, sympathetic, sensitive handling will be required.
DavidsonMorris can help your business manage long term sickness absence and advise on options where employees have been off work ill for a long period. Our employment law and HR specialists work with employers across the UK, providing advice on specific matters to ensure you are acting lawfully and mitigating any wider risks and also support on a proactive basis through sickness absence policies and training.
If you have a question about long term sickness absence, contact us.