An employee absent on long-term sickness resulting in leave can pose a number of challenges, not only on a human level (wanting to be sensitive to the employee’s condition) but a business level as well (there is still work to be done).
Employers might feel they’re in the dark on when they may expect their employee to come back, or if at all. GPs are incredibly busy so may not have the time to provide a detailed prognosis or a real sense of when the employee may be able to return to work. The fit notes may feel endless along with ongoing payments of company or statutory sick pay.
We are regularly asked by employers how they can manage long-term sickness absence and whether dismissal is an option, especially when there is a risk of a disability.
What are the risks an employer needs to have in mind?
If you get to the point of contemplating dismissal, there are two main risk factors to have in mind:
- Unfair dismissal, if the employee has over two years’ service
- Disability discrimination, if the reason for their absence could be considered a disability under the Equality Act 2010
It is likely that any dismissal will pose some risk of a Tribunal claim but if you follow the process below, it will help reduce some of the risk.
Make sure you check your long-term sickness policy
Before embarking on any sickness absence process make sure to check your long-term sickness absence policy to see if there is a minimum level of sickness absence which must be hit before it is considered long-term sickness absence and you go any further. Some policies may be contractual and will need to be followed. Even if not contractual, if your policy does set out a process for managing absence, it is good practice to follow it and your employees will reasonably expect you to do so.
Consider whether a disability could be in play
Your employee’s health condition may meet the qualifying criteria under the Equality Act 2010 and amount to a disability, even if the employee would not identify as being disabled.
The legal definition of a disability is a physical or mental impairment which has a significant (meaning more than minor or trivial) and long-term (meaning 12 months or the rest of someone’s life) adverse effect on someone’s ability to carry out normal day to day activities. Ultimately, only a Tribunal can determine whether or not your employee’s condition meets the legal definition of a disability and whether you have knowledge of that disability. This is where medical evidence can help and you would certainly want to make sure, prior to dismissal, that you have a good understanding of the current medical position (see further below under section 3).
Even if your employee does have a disability under the Equality Act 2010 it doesn’t mean you cannot consider dismissal. You just need to ensure you are dismissing the employee not because of any disability/potential disability but rather their attendance and, further, that the decision is based on their attendance and that is justified as a proportionate means of achieving a legitimate aim. You will also need to be comfortable that in the steps you have gone through to this point, you have made any reasonable adjustments that may be required.
What process should we follow?
Before you take any steps to dismiss you need to make sure that you fully understand your employee’s health condition and prognosis.
Given the risks of an unfair dismissal and/or disability discrimination claim if you were to dismiss, there are several steps you will need to take to protect yourself. Here are a few of the things you will need to consider:
- Meetings and ongoing dialogue with the employee – The longer an employee is away from work, the less likely it becomes that they will return. You should look to maintain an ongoing dialogue with them whilst they are off, ideally with an agreed point of contact and intervals for catch ups. You should have meetings with your employee (ideally face to face) to discuss their absence and the impact their continued absence is having on the organisation. Such meetings should be supportive but nevertheless, you can discuss with your employee their views on when they might be able to return to work and if there are any adjustments they would like to be made. The onus is on you to explore adjustments but it is often sensible to do this as a collaborative exercise. If there is nothing you can do to adjust an employee’s role and they are unable to return to it, you may in time also wish to discuss whether there are any other alternative roles within the organisation that may be better suited considering their condition. As part of these meetings you can explain that if their absence levels do not improve, a formal process will need to be commenced which may result in dismissal.
- Medical advice – If you do decide that dismissal may be a real possibility, we would recommend you consider obtaining a medical report about the employee (whether that be from an occupational health expert, or the employee’s GP). This will need to be with the employee’s consent. Through discussions about the report you can explore the impact the employee’s health has on their role and any workplace issues that might be at play and what reasonable adjustments/support can be put in place. Your employee may disagree with the report, your own observations may conflict with the findings or you may not be able to implement recommendations made in the report. Nevertheless, you need to demonstrate that you have considered all of this in consultation with the employee to help reduce the risk of a successful claim.
- Further consultation – Only once you have fully considered the employee’s prognosis and likely anticipated length of future absences, whether there are any adjustments you can make to assist a return to work, and explored possible redeployment opportunities, should you look at proceeding with a dismissal. We would usually expect there to be at least two formal meetings after an occupational health report is obtained before a decision is made to dismiss but this will need to be subject to what discussions take place and what information is obtained along the way. The ‘consultation’ element is a key part of a fair dismissal process. We would also recommend that, prior to dismissal, you make a file note of the steps taken up to that point and, ultimately, the rationale for dismissal. This isn’t something you need to provide to the employee but it may become an important part of your paper trail.
- Appeal – Remember that even if you do decide to dismiss your employee, they need to be given the right to appeal.
How can we help?
Dismissals of employees with long term absence and health conditions are not impossible but they are fraught with risks and can feel challenging to manage. Those risks could result in an expensive Employment Tribunal claim for unfair dismissal and/or disability discrimination (for which compensation is uncapped). Therefore, if you are in any doubt about what to do next in managing an employee’s long-term sickness absence, then we suggest you get in touch. We can provide template letters, agendas for the meetings and questions to ask the occupational health therapist or just provide someone on the other end of the line to sense check any action you wish to take. We would be happy to help.
If you are in a situation where you need help managing long-term sickness absence as your employee isn’t returning, please contact the Employment Team on 01872 265100 or email enquiries@stephens-scown.co.uk.