Stuart Chamberlain, senior author and employment law consultant explores the different forms of sickness absence.
Sickness absence can range from persistent short-term absences to long-term sickness absence as a result of a serious illness, accident or operation. In the majority of cases these absences will be genuine. But some may not be, leading to the need for further investigation and disciplinary action. This article focuses on dealing with long-term sickness absence, including the dismissal of the employee.
What is long-term sickness absence?
Employees who are off work sick for more than four weeks are generally considered to be on long-term sick leave. In practice, cases before an employment tribunal usually involve longer absences.
Dealing with long-term sickness can be a delicate issue. A sympathetic response may be required as the illness may be serious and could involve a mental health problem; but equally at the same time, it can represent a strain on the business and decisive action needs to be taken.
How absence affects companies and organisations
The direct costs of sickness absence are obvious and include: the requirement to pay statutory sick pay, occupational sick pay, overtime and for temporary cover, especially when there is a need to replace skilled employees.
There are also indirect effects, including possible adverse effects on productivity and the fact that staff may become resentful at having to regularly cover for absent colleagues.
Employers are often bewildered by the complexity of the various pieces of legislation governing sickness absence and the uncertainty in dealing with absent staff. The cost of getting it wrong can be expensive, which may deter some employers from taking prompt and decisive action to deal with unauthorised and short-term absence.
Sickness policies and procedures
It is vital that all employers have a clear policy for managing sickness and unauthorised absences. A policy will help employers to deal with absences consistently and effectively, as well as giving notice to employees about the standards of attendance and reporting that the employer expects from them.
The policy should set out the following:
how employees inform the organisation that they are sick
the purpose and arrangements for “fit notes” (provided by hospital doctors orGPs if the employee is off sick for more than seven days in a row —including non-working days)
the arrangements for “return to work” interviews
explain what absences will trigger the disciplinary procedure, including long-term sickness absence, which should have a system of trigger points for formal review meetings.
Dismissal — key points for action
An employer who decides that the employee has been away for too long and with no real prospect of return to work (“enough is enough”) and is considering, therefore, the dismissal of the employee should follow the following key points in their procedure.
Ensure that the absence has been in accordance with the organisation’s policy — see above — especially the final formal review meeting.
Keep in touch with the employee on absence leave and make them aware that prolonged absence may lead to their dismissal.
Investigate the medical position fully throughout the procedure with a view to establishing:
the nature of the condition, by obtaining a medical opinion (ideally with the employee’s consent) about the employee’s current and future capability (note that, if the employee refuses consent, the employer is entitled to make a decision on the limited medical evidence available)
the prognosis for a return to work within a reasonable timescale
whether there are any adjustments the employer can make to help the employee return to work — see below
alternatives to dismissal, such as alternative employment.
In the light of the disability provisions of the Equality Act 2010, consider all reasonable adjustments to the job or work environment which could make it easier for the employee to return to work. There may also be a requirement to offer any available suitable alternative employment to an employee who falls within the definition of “disability” under the 2010 Act. Ensure that records of discussions with the employee are kept.
The decision to dismiss the employee must be within the “range of reasonable responses of a reasonable employer”, having regard to the prognosis for the employee's return to work and the impact of the absence on the business.
Consult with the employee as they should have an opportunity to state their case before a decision to dismiss is taken
it will be unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired.
An employer who dismisses an employee because of long-term sickness will potentially have to show that the dismissal was justified and fair after exploring all the available options, including alternative duties or roles.
In 2006, the Court of Appeal set out some valuable advice for employers on dealing with long-term sickness absence.
It will not necessarily be unfair for an employee to be dismissed for if they have been away for a long period (in this case it was 12 months) and have no idea when they will return to work. The Court of Appeal emphasised that the employer needs certainty and can decide that “enough is enough”.
The employer will be expected to show evidence that there has been disruption to work as result of the absence. Sometimes a general statement will be all that is necessary but, at other times, more information is required — such as the impact on colleagues who are covering the duties and the costs of covering the absence.
This evidence will be a significant factor in deciding when a dismissal is necessary, why it was taken at this time and why it could not be deferred.
The Court of Appeal’s judgment highlights the need for an employer to ascertain the medical position at all stages of the process and the need to show in many cases the full adverse impact of the continuing absence on the organisation and its staff.