Long Term Sickness Absence – 5 Key Considerations For Employers

If you’re a business and unsure what to do when it comes to managing long-term absences from work due to sickness, here are some essential considerations for employers. 

1. Do you have medical evidence to make informed decisions? 

Once it is clear in a sick absence a process that an employee’s absence is going to move from being a short-term to a long-term absence, and an immediate return to work appears unlikely, the correct procedure is to write to the employee requesting consent for you to write to their GP or specialist for a medical report regarding their condition. Please be wary that to obtain consent you must ensure the employee is advised as to why a medical report is needed and does not, for example, cover issues not discussed with the employee.  You will need to ensure that the consent form and the letter requesting a medical report to the GP or Specialist is consistent with the explanation given to the employee for the requirement for a medical report. Please ensure you seek specialist advice in obtaining consent as you must ensure that any documentation is both compliant with AMRA 1988 and the UK GDPR and DPA 2018. You will then ask the GP or specialist to answer a series of questions to ascertain how the employee’s current health condition is impacting their return to work and whether any adjustments can be made to facilitate their safe return.

2. Have you sought specialist occupational health advice?

Increasingly, GP’s do not want to commit to making recommendations of reasonable adjustments for an employee to return to work. Therefore, we would strongly advise you to seek a specialist occupational health report which again you will need the employee’s consent for. Typically, contracts of employment will contain an express right for the employee to consent to a medical examination at the Company’s expense with an occupational health specialist nominated by the Company. The occupational health report once finalised (and an employee has consented to you receiving a copy of the same) should guide what you do next in the process.

3. When are you under a legal duty to consider reasonable adjustments?

Once you are in receipt of a medical report and/or occupational health report you should have been advised by the specialist whether the Employee is defined as disabled for the purposes of the Equality Act 2010. Under the Equality Act 2010, disability is defined as ‘any physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities’. You will only be under a duty to make a particular proposed adjustment (and hence only in breach of the duty to make reasonable adjustments if that adjustment has not been made) if it is reasonable in the circumstances to expect you as the employer to make that adjustment.

The Equality and Human Right’s Commission’s (EHRC) code of practice (Code) came into force on 6^th April 2011. The Code suggests some ‘factors which might be taken into account when deciding what is a reasonable step for an employer to have to take’:

• whether taking any particular steps would be effective in preventing the substantial disadvantage;
• the practicability of the step;
• the financial and other costs of making the adjustment and the extent of any disruption caused;
• the extent of the employer’s financial or other resources;
• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and
• the type and size of the employer.

The EHRC’s Code lists examples of reasonable adjustments and some commonly implemented examples include:

• allocating some of the disabled person’s duties to another worker;
• altering the disabled worker’s hours of work or training; or
• assigning the disabled worker to a different place of work or training or arranging home working.

The final reasonable adjustment of arranging home working is particularly topical as the pandemic proved that many employers who previously did not permit homeworking were forced to do so during the various stages of lockdown. Resultantly this has impacted a number of the factors set out above for an employer to determine what would be a reasonable step to take.

4. Is it reasonable for us to consider dismissal if the employee is not capable of returning to work?

You will need to establish with the benefit of medical evidence (ideally an up-to-date occupational health report), the nature of the health condition and its effects on the employee, how long their absence is likely to last and the effect the absence of the employee will have on the business. If the properly documented conclusion is that there appears to be no likely return to work for the employee, then dismissal for capability and/or some other substantial reason (SOSR) should be considered by following an appropriate procedure.

Please note that in terms of what is reasonable, the size of the employer is likely to be relevant, as a small employer may be less able to deal with a long absence than a larger employer, which may be able to reallocate staff to cover the absent employee more easily for an extended period.

5. What process do we need to follow to terminate an employee’s employment for capability and/or SOSR if we have been unable facilitate a return to work?

1. Invite the employee to a meeting at their workplace to discuss their attendance and the steps you have taken to seek to improve their attendance and facilitate their safe return to work. The invite would need to be clear that an outcome of the process may be termination of their employment. They should be given a right of accompaniment to attend the meeting and informed in the letter of the right.
2. The employee may refuse to attend the workplace – you could offer to hold the meeting via Zoom or Teams for example.
3. Often in these processes the employee’s GP will advise that the employee is not fit to attend the meeting so the meeting might have to be held in their absence. You should act reasonably and give them a second chance to attend the meeting offering an alternative date. Again, they may decline to attend.
4. Along with the invite letter you should enclose:
   1. a copy of the relevant policy (attendance, sickness, capability);
   2. their attendance record;
   3. medical evidence (e.g. occupational health report); and
   4. any other relevant evidence.
5. At the meeting you would:
   1. refer to the relevant policy;
   2. discuss the employee’s attendance record;
   3. review the medical evidence with them;
   4. allow the employee to ask questions and discuss and/or challenge the evidence.
   5. make your decision and inform the employee of the decision.
6. Following the meeting you would confirm your decision in writing to the employee confirming their entitlement to their notice pay (see point 7), any accrued but untaken holiday pay, their last day of employment, that they have a right of appeal and any other additional information that is relevant.
7. Please note that under Section 88(1)(b) of the Employment Rights Act 1996, where an employee should be paid full pay for the statutory minimum notice period in cases where the employee is incapable of work because of being absent on ill health grounds. However, under s.87(4) this right does not apply where the contractual period of notice exceeds the statutory minimum notice period by at least one week.
8. Any appeal would need to be chaired by a different individual to the dismissal decision-maker. The employee has the right to be accompanied at the meeting. The final decision should again be notified to the employee in writing.