3 Oct 2016

Employees' absence can take many different forms, but often the most difficult to manage is long term sickness absence, as it can raise complex legal and management conundrums. Here are our top tips for dealing with these tricky situations:

1. Investigate the cause and likely length of absence 
This should be done at the beginning of the period of absence to help inform your business planning. An initial investigation is also useful in ruling out any work-related triggers for the absence, such as stress (see 5 below).

You will probably need to obtain medical evidence in order to establish the reason for the absence. The employee should present you with a ‘fit note’, but if you need more information you must inform the employee in writing that you intend to contact his/ her doctor and obtain the employee’s consent to do this. 

2. Dealing with potential dishonesty
If any doubts cannot be dispelled by obtaining medical evidence or if the evidence submitted is suspicious, further investigation should be conducted. Remember to check and follow your company procedure for dealing with any allegations of dishonesty.

3. Maintain regular contact with the absent employee
The amount of contact will depend on the nature of the employee’s work as well as the business- for example, it might be reasonable to contact a senior employee more frequently than a junior employee. Remember, you should only contact the employee when absolutely necessary and try to deal with him/her in a sensitive manner- you do not want to be accused of pressuring the employee to return to work or of hindering any recovery (or at worse face a claim of harassment!). 

4. An assisted return to work
If the employee is well enough to return to work consider what steps, if any, need to be taken to support this process- the more helpful you can be, the more likely the employee will settle back into work.

If the medical report suggests that the employee is fit enough to work but not in his/ her previous role, you should consider whether alternative work is available that would better accommodate the employee. However, you are not under a duty to create a special job where no alternative work exists.

5. Is it our fault?
Your biggest liability arises if the employer has caused the employee’s injury or illness or if you have failed to make reasonable adjustments or discriminated against a disabled employee in such a way as to exacerbate an existing condition.

Compensation for breach of the Equality Act 2010 or the Disability Discrimination Act 1995 is calculated in the same way as unfair dismissal, but is potentially unlimited and is not subject to the unfair dismissal cap of £65,300.

6. Preparing for a possible dismissal
After assessing the likely length of absence, the likelihood of the employee making a full recovery and assessing any means of enabling the employee to return to work, it may be that the continued employment of an employee is no longer feasible. In this case it may be fair for you to dismiss the employee.

Beware claims for Unfair Dismissal! Most dismissals which take place following a period of sickness absence will be by reason of the employee's incapability to do the job. To establish that it was fair to dismiss an employee for capability, an employer would need to demonstrate to a tribunal that they had acted reasonably in treating the employee's absence or attendance record as a sufficient reason for dismissal.

Beware claims for Disability Discrimination! If an employee is dismissed because of his/ her illness and that illness qualifies as a disability, the employee may allege that he/she was unlawfully dismissed as a result of that disability (direct discrimination), for a reasons arising in consequence of the disability or because he/she could not comply with the employer’s requirements because of the disability (indirect discrimination). Consider carefully whether you are at risk of any such claims and how you might manage that risk e.g. by adopting appropriate processes and considering whether you have a helpful paper trail or not.

7. How does a dismissal impact on Private Health Insurance cover?
Payment of PHI benefits are often conditional on the recipient remaining in employment. A dismissal could deprive the employee of benefits and give rise to a claim for lost benefits up to retirement. This could be a huge liability. Always check the policy rules and the employee’s contract.

In summary, remember to handle the situation sensitively, follow your procedures throughout, keep a detailed and accurate paper trail and consider how any dismissal will impact upon the employees entitlement to any benefits etc.

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