Employers face a difficult task when it comes to managing sickness absence, particularly if the cause of sickness is linked to a physical disability. Employers must be careful as any less than a sensitive, considered approach could expose them to claims.
Employers must include any conditions or terms relating to disability in their employee’s contracts of employment, or more commonly, in a separate policy on sickness absence. These provisions allow employers to deal with absences effectively by defining the procedure they will use and what the employee is expected to do. Employers should ensure that managers apply these provisions consistently so as to prevent employees from feeling “singled-out”.
How to handle long-term sick leave
Employees will often return to their jobs without any problems shortly after the first day they are absent. Employers should monitor sick leave and keep in touch with their employees to ensure they are well and to find out how long the absence will last.
In some cases, however, the absences can be prolonged or persistent, and that is when problems arise. Employers should seek medical advice in these situations through an Occupational Health Referral. These referrals will help determine the employee’s health and whether they can return to work. They may also provide information on any modifications or supports that could be made to assist the employee in returning to work.
A “return-to-work meeting” is necessary if a return to the workplace is feasible. This will allow you to decide on a plan based on medical advice, and reduce the likelihood of future absences. It may be necessary to discuss specific timeframes, and how the adjustments will be implemented. It will also help employers to meet their obligation to make reasonable accommodations under the Equality Act 2010, which requires that they take reasonable steps to prevent any substantial disadvantages which a worker with a disability suffers compared to their nondisabled co-workers.
It may not be clear whether or when a return to the workplace is possible. Employers should meet with employees to discuss the return of the employee, the perceived ability of the employee to perform the role, and other options such as redeployment.
If the employer believes that the employee is not fit to return to their job (or cannot say when or if the employee may be able to do so again), then they should arrange a final meeting to inform the employee of the potential dismissal. They should also ask for their opinion. The reasons for the dismissal must be clearly stated in any correspondence. An employee should also have the right to appeal.
Tips to employers
It is important to be cautious in this area to avoid unfair dismissal claims and disability discrimination (where a sickness relates with a disability).
Employers should avoid acting hastily in order to minimize this risk. A tribunal will expect that an employer has taken a considered and thorough approach, obtaining medical evidence as well as meeting with the employee to discuss all options and ways to avoid dismissal. Employers should maintain a paper trail for all correspondence, including with the medical practitioner.
Ethan Diver is a solicitor at Taylor Walton Solicitors www.taylorwalton.co.uk
The first time this post appeared was on Human Resources News.
