Long-term sickness absence is usually defined as a period of continuous absence of more than four weeks.
The absence may be due to an unexpected illness, chronic condition, an accident or planned operation, and should be managed sensitively and supportively.
When an employee is off sick for a long time, it can often feel like you’re walking a tight rope as an employer. On the one hand, you recognise that your employee is unwell, and you sympathise with them. On the other hand, sick leave can be a significant financial burden to a small business. It’s often difficult to cover the absent employee’s work, placing additional burden on other employees, and it can adversely impact your ability to run your business.
What we often see, particularly in small businesses is that the strain of an employee on long term sick can lead to rash decisions being made and in some cases, costly disability discrimination claims.
In this post we’ll point out the key elements to be aware of when it comes to managing long-term sickness and share some do’s and don’ts to help you stay on the right side of the law.
Long-term sickness and employment law
While an employee on long-term sick can be particularly challenging for a business, there’s considerable employment law in place to prevent employers discriminating against employees.
The key pieces of legislation to bear in mind when managing long term ill health are the Employment Rights Act 1996, which deals with termination of employment on ill health grounds, and the Equality Act 2010, which covers disability as well as other forms of discrimination.
The Equality Act places obligations upon the employer to make “reasonable adjustments” for staff who have a disability or long-term health condition, in order to enable them to return to work and to carry out their job.
How to manage long-term sickness absence
The procedure for managing long-term absence is similar to managing regular repetitions of short-term absence, but you will likely need to take a more sensitive approach.
Stage 1 meeting
If your employee has been off for more than 4 weeks and there are no plans for an imminent return, you should invite them to a formal Stage 1 absence meeting. Try to be flexible by offering to hold the meeting at their home and with a family member present or in a neutral location with a work colleague/ friend if they wish.
As with all formal employment meetings, notes should be taken at the meeting and the discussion should be followed up in writing and sent to the employee with a copy of the notes taken.
Stage 2 meeting
If the employee remains off work for a further month, consider a second formal meeting.
The individual should be submitting medical certificates (“fit notes”) to indicate a possible return to work date, which will give you more of an idea on how to proceed. You might also want to try to obtain further medical information from the employee’s GP or request that the employee attends an occupational health appointment to help establish how long the absence might continue.
You can continue to hold these formal Sickness Absence meetings for the duration of the absence to keep updated on the employee’s progress until they return.
Dismissing an employee on long-term sick
If it looks unlikely that the employee will be able to return to work in the foreseeable future; you have sought medical advice confirming this and there are no reasonable adjustments that can be made to assist a return to work, it may be appropriate to undertake a final review to consider whether you need to end the employment as a result of ill health.
This is a very tricky and sensitive issue, however, a capability dismissal on grounds of ill-health should always be a last resort. There is no one size fits all timeframe as to what would be considered reasonable before dismissing an employee on long term sick. It very much depends on the condition, role and impact the absence is having on the business. As such, it’s strongly recommended to seek advice from an HR expert to ensure you have taken suitable steps to protect yourself from any risks associated with ill health dismissal.
Long-term sickness: Do’s and don’ts
When managing a long-term sickness absence, the following do’s and don’ts will help you to stay on the correct side of employment law during this challenging time.
- Create a written record of the impact the employee’s continued absence is having on your business (if you have had to employ an additional resource, plus sick pay, etc.), both financially and with regards to other members of staff (workload, annual leave/ absence cover, etc.)
- Make sure you keep detailed records of the contents of your meetings with the employee (it’s often useful to have someone else there you can trust, simply as a note taker)
- Request medical certificates in a timely manner; if the individual does not submit one within a few days of the last one expiring, ensure that you ask the individual to do so as soon as possible (if the individual is uncontactable, write to them for this but consider the potential that their condition may have worsened or they may not have been able to get an appointment straight away)
- Try to obtain consent from the individual to gather further medical information from the employee’s GP or an occupational health provider
- Make reasonable adjustments where possible and speak to the employee regularly regarding if there are any additional means of support which might help a return to work
- Follow a fair and formal procedure right to the end, even if that means further delays
- Consider any new information, even if it’s given to you right at the last minute
- Be sensitive: Ensure that your conversations are handled sensitively and with concern, irrespective of the challenges and frustrations the absence is generating for you and your business
- Be too hasty in reaching your final decision: Remember your process needs to be fair. Any failure to act reasonably could leave you facing a costly unfair dismissal and/or discrimination claim
- Make your employee feel guilty or approach the situation without empathy
- Pre-judge the procedure outcome– the purpose of following a formal procedure and having regular meetings is to listen to your employee and consider anything new they have to say, even if what they say will require you to investigate further or obtain new medical evidence
- Assume that the adverse impact on your business is caused by the employee’s absence is “obvious” and doesn’t need spelling out in detail
Get HR Support
Managing an employee on long-term sick leave is extremely challenging and you’re likely to be caught up in a mix of frustration at the situation, sympathy for the individual and anxiety around complying with employment law. And as there’s no one size fits all solution, seeking expert HR advice for your particular situation is always the best course of action.
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