This month’s figures from the Office for National statistics (ONS) reveal that more 2.5 million people in the UK are no longer working due to ill health. Mental health issues among the young, post-viral fatigue and neck and back issues caused by home-working are thought to have contributed to the rise.
While the nature of the work in some sectors, such as agriculture and construction, make illness and injury more likely, the figures are a stark reminder that long-term sickness is an issue all organisations need to be prepared for. Employment partner and head Louise Attrup outlines how employers can best manage the situation.
Employers should ensure they have an effective sickness policy in place. This will reduce legal risk, facilitate dealing with absences consistently, and signpost to employees the standards of attendance and reporting expected.
Keeping track and assessing risk
To prevent smaller issues progressing into chronic problems, keeping track of sickness absence and assessing risk to the overall health of employees is crucial; employers should review these for individuals who develop physical or mental health vulnerabilities.
Employers should check in with an employee on long-term sick leave regularly, so they are updated on their medical condition, and maintain a paper trail of those interactions and any information regarding the employee’s health.
After some weeks, and always following their own sickness policies, employers should begin formal meetings to assess the employee’s prognosis: how long is the employee likely to be off work, and is the employee suffering from a disability? In many instances, it will be important for employers to ask the employee to have a medical examination. Employers should reserve the right to request this in the employment contract.
Employees with a disability
If the employee has a disability (any long-term physical or mental health condition which has a substantial adverse effect on day-to-day activities), the employer is under a legal duty to make reasonable adjustments to enable them to work more easily, and not to discriminate. This may include keeping their job available to them, being flexible with working patterns or providing special work equipment.
If an employer treats an employee unfavourably because of something arising from their disability, that could be unlawful discrimination (eg, issuing a disciplinary warning for high levels of absence, which is for chemotherapy treatment). Disability-related sickness absences should usually be treated more leniently as a ‘reasonable adjustment’.
Employers could face several claims if they are not careful how they treat sick employees who are disabled, including disability discrimination and unfair dismissal. When faced with an employee with a long-term health condition, employers should focus on the reasonable adjustments they can make, rather than trying to work out if an employee’s condition is a disability.
Conduct during sick leave
Being on sick leave does not release an employee from all obligations towards their employer. Employees still have to comply with lawful and reasonable orders, to the extent they can do so in light of their health.
However, employers do not have absolute control over their employee’s activities, even if the employee is on full sick pay. In Ms V Lindsay v HBOS, a Halifax Bank of Scotland employee won £22,000 after she was dismissed for continuing to promote her cake-making on social media while on long-term sickness absence.
Return to work
It is important to carry out back-to-work assessments for employees who have been seriously ill and absent from work for a long period. A return-to-work interview, or series of interviews, before an employee’s proposed return date will help establish whether they are fit to come back and how best to reintroduce them to work. Managers and employees should work together to identify any adjustments which might make coming back easier, and which might include a phased return to work.
Dismissal and its alternatives
An employer cannot usually just dismiss an employee for taking sick leave. It must act reasonably and follow a fair procedure, like a capability process. Although employees must have at least two years’ service to accrue unfair dismissal rights, employers can still face claims from recent hires for discrimination, from day one of employment.
Employers should therefore be wary of taking disciplinary action or dismissing employees on the basis of ‘excessive’ sick days taken, particularly if the employee is disabled, pregnant, or where the employer is potentially responsible for the employee’s ill-health.
While the nature of the work in some sectors is likely to see a higher incident of long-term sickness compared to desk-bound sectors, all employers can reduce the risk of legal claims by ensuring employment policies are comprehensive and regularly circulated. This allows employees to know what to expect should they fall ill, and managers know what steps to take to ensure they follow fair and consistent procedures.
This article was originally published on peoplemanagement.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.