11 Aug 2016

Are you sick of managing absence?

Our employment lawyer, Nigel French says....

Managing sickness absence is notoriously difficult to get right. The law, which can be clear in some areas, is anything but when dealing with the tolerance employers can be required to show. So how can employers balance their business needs, whilst considering the health and wellbeing of their employees?

Employers should ensure that they have in place a clearly worded sickness absence policy, including rules on notification, required evidence, payment of sick pay and return-to-work interviews. It is important to maintain contact with employees who are on long-term sickness absence, and, when they are ready to return to work, to devise a structured return-to-work plan and allow for adequate adjustments and support.

I advise employers to distinguish between short and long term absence. Unlike the approach to long-term sickness, the employer can warn the employee in respect of short-term regular absences. This should involve formal warnings, which curiously can have a medicinal effect or at least force the employee to seek proper medical diagnosis and attention. The employer should question if something can be done to avoid dismissal. Factors to be taken into account include the nature of the illness, the likelihood of it returning and the need for the work to be carried out by that employee.

There is no rule of law that the employer should find a special job for an employee who is off sick. But it may be that the employer has other light work which, is within the employee’s capacity to do so, and the employee should be encouraged to take such a post, even on reduced pay, before dismissal is considered, such as medical redeployment. This burden is strengthened somewhat when one is dealing with someone who is deemed to be disabled within the meaning of S6. Equality Act 2010.

What if the dismissal route becomes inevitable? An employee who has been absent from work for a long time because of sickness or ill-health is entitled to sympathetic consideration, but the employer can only be expected to act within sensible limits. Some important factors will include how long has the employment lasted, how long had it been expected the employment would continue, the nature, effect and length of the illness. An important point to consider is whether the time has arrived where the employer can no longer reasonably be expected to keep the post open. This is largely a question of fact and degree. However, under the Access to Medical Reports Act 1988 an employer can seek further information on the nature of an employee’s illness, so long as the protocols are carefully followed.  

The preferred category for an absence related dismissal is generally ‘capability’.  However, what if one is dealing with a malingerer? In such cases, it is crucial to recognise that what we are considering here is someone who has been caught out.  E.g. witnessed playing in a golfing tournament whilst off with a chronic back problem, or someone seen (real case!) performing on stage as a psychic whilst suffering from a debilitating mental condition (Beastall v Ministry of Defence). The reason for dismissal then becomes (generally) gross misconduct. However, care is needed to ensure that the person witnessed out for the evening with friends when absent through a ‘stress’ related condition, or even taking a holiday whilst off sick, is not accused of malingering, as opposed to taking recuperative steps!    

Beware that dismissals on health related grounds will be affected by the requirements for employers to make reasonable adjustments to cater for employees who are disabled within the meaning of the Equality Act 2010. Therefore you should take advice if you believe that the employee concerned is disabled, as more significant safeguards are in place, particularly when dealing with the extent to which you can make reasonable adjustments.

It will be seen that the management of sickness absence and the termination of employment requires a degree of care but properly managed, it is possible to get it right!

Nigel French (LLM) Employment Lawyer, Nigel French and Associates

Nigel French