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How should you deal with an employee who is off sick, long-term?

Most absence issues can be managed without escalating to formal meetings and warnings. However, if you find that absence levels are causing an unacceptable level of business disruption, you may need to go down a more formal route.

It is always advisable to have an up to date sickness absence policy within your staff handbook, providing a ‘trigger point’ for such absences, or series of absences, to be dealt with formally and in accordance with the procedure set out in the policy.

Do you have a staff handbook?

Is it up to date?

Does it contain an accurate sickness absence policy?

What is long term sickness absence?

There is no definition of long term sickness in law but it is often thought of as any period of continued absence lasting 28 days or more (or 4 weeks).

What rights do employees have?

When managing sickness absence, there are two main Acts to consider. These are:

  • The Employment Rights Act 1996 (this deals with termination of employment on the grounds of ill health); and
  • The Equality Act 2010 (this deals with discrimination law, including disability discrimination and the definition of a disability for the purposes of employment law).

There are many things to think about, including but not limited to, reasonable adjustments, occupational health reports and the input of medical experts, as well as calculating the risk of any decision that is made.

Do employees off sick, long term, have to be paid?

Yes, employees are entitled to statutory sick pay (SSP). This entitles eligible employees who are absent from work due to incapacity and who meet three qualifying conditions to receive a weekly SSP payment for up to 28 weeks in any period of incapacity for work (or linked periods of incapacity).

Employees may also be entitled to company sick pay, depending on the terms in their contract of employment and/or the staff handbook. Both of these documents should be checked, preferably by a solicitor who specialises in employment law. Sometimes there are discrepancies, or things happen that may be considered custom and practice and it is vital to get these things right. Don’t ever guess!

Who is eligible for SSP?

SSP is available for employees. However, for the purposes of SSP, “employee” includes all those whose earnings are liable for Class 1 National Insurance contributions (NICs) (NICs).

The employee must have average weekly earnings of not less than the Lower Earnings Limit based on the eight weeks before they became sick. For further details of the current Lower Earnings Limit, see https://www.gov.uk/government/publications/rates-and-allowances-national-insurance-contributions/rates-and-allowances-national-insurance-contributions .

SSP is not payable to:

  • Employees who have not yet commenced work.
  • Employees who have already received their full 28 weeks’ entitlement of SSP or have been on Linked Periods of Incapacity for Work (PIWs) PIWs for more than 3 years.

There are also no age limits for claiming SSP.

First formal meeting

Employers are often wary of dealing with individuals who have been off sick for a sustained period of time, especially where the cause of their sickness is not clear, or they are awaiting diagnosis.

However, you should not allow the situation to drag out until it reaches a point where the employee has been off for so long that dismissal starts to look like the only feasible option for the business. This can lead to issues with regards to unfair dismissal and disability discrimination laws.

In a first formal meeting to discuss long-term absence, a business is likely to want to explore the following issues:

  • The likely date of return (arrangements for future contact, further medical review and further meetings under the company’s procedure) and whether the business can continue to wait for the employee to return, or not.
  • Whether the employee has a disability (for the purposes of the Equality Act 2010).
  • Whether the employee perceives they can return to their previous job, without any reasonable adjustments.
  • Whether the employee perceives that they can return to their previous job, with reasonable adjustments and whether those adjustments can be made.  If the employee is disabled, you have a duty to make any adjustments that are reasonable.
  • What alternatives the employee may wish to explore: redeployment or application for employment benefits, if applicable.
  • The procedure of a return to work programme.

A second or further meeting would be arranged in cases where dismissal is considered. Legal advice should always be sought from the earliest possible stage, and certainly prior to any dismissal taking place in order that the company is put in the best possible position.

How do we know how long an employee will be off for?

There is often no way of knowing, long term. The employee should be providing current fit notes, which may stipulate an amount of time, but these often get renewed and employees can be off for months, and even years, if matters are not dealt with effectively and are left to drag out (and will remain employed and continue to accrue holiday pay etc.).

The business should establish the reason for the absence in order that you can rule out, or address any work-related cause. You should be aware of signs of work related stress and regular training for managers- this can help ensure consistency and awareness are maintained.

You should consider whether an individual is likely to return to work in the foreseeable future. If the employee appears to be unable to work and unlikely to return, you should consider whether, if applicable, they would qualify for any permanent health insurance (PHI) or ill-health pension provisions that are in place, and should facilitate the employee contacting the relevant provider if this applies to them.

In short, there is no way of knowing for sure, but you should make sure that up to date fit notes are received and that communication is maintained, albeit appropriately, throughout.

Can we ask for medical evidence?

Depending on the reason for the absence and the illness in question, you should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert.

You will normally bear the cost of an examination where it has been undertaken at your request. There should also be some wording with regards to this in your contract and handbook, if they have been drafted effectively.

Information from an independent specialist who has not previously been responsible for the employee may be seen as more reliable than information from an employee’s GP.

Whenever obtaining a medical report, in order to comply with the Access to Medical Reports Act 1988, you should follow the correct procedure.

For further information on obtaining medical evidence when dismissal is contemplated you should seek legal advice!

You should always remember that information about a person’s health is particularly sensitive and constitutes “special category data” under the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR) and Data Protection Act 2018. Special category data should be handled fairly and transparently, in accordance with the principles of the UK GDPR.

You should ensure that the employee is clear about the purposes for which the information will be used and to whom it will be disclosed. You should also treat information received about a person’s health with sensitivity and not use it in a way which would breach trust and confidence. Have you got a privacy policy?

On a final note, you must obtain the employee’s signed consent prior to referring them to occupational health or requesting a report from an independent specialist doctor or their GP. If the employee does not provide consent, you cannot refer them and you would need to make a decision regarding the next stages of the process without any medical evidence. Again, don’t worry about this, our legal experts can help you make this decision.

What do we do when we have the information?

If you have obtained a medical report, you should meet with the employee to discuss the report and consult with them before taking any action on the basis of the recommendations in the report.

Consultation involves continuing exchange of information, and views, concerning the employee’s illness between the parties and full evaluation of any available medical evidence. This is especially important where there is any conflict between the evidence put forward by the employee and that obtained by the business.

It is advisable to write to the employee in advance, setting out the nature of the meeting so that the correct process can be followed and the meeting can be concluded more quickly, otherwise the employee can legitimately ask for more time to get any necessary information (such as further medical reports). Ideally, you should seek legal advice from the very beginning and instruct a solicitor to draft any correspondence for you to send. It may also be necessary to hold more than one meeting, depending on the specific case.

The following points may be considered and discussed:

  • Whether, if applicable, contractual sick pay is going to be paid, continued or discontinued.
  • Whether the individual is fit to return to work and any arrangements for a phased return.
  • Whether, if the individual has a disability, any reasonable adjustments need to be made.
  • Whether, if the individual is not fit to return to work, they may be entitled to ill-health retirement or permanent health insurance.
  • Whether dismissal is likely in future.

How do we arrange a meeting with an employee who is off sick?

You should speak to the employee and establish whether or not they are able to attend their workplace, or another of the business premises without difficulty. If it is difficult for them to attend their workplace or another premises, you should consider holding any meeting at the employee’s home or at an alternative, neutral, venue. Legal advice should always be sought prior to speaking to the employee or writing to them.

Where the employee is seriously ill or disabled, you should consider permitting the individual to be accompanied by a friend or family member (even if this is not expressly permitted in any contractual policy). It may not be feasible for the individual to be accompanied by a work colleague if the colleague would have to take additional time off work to travel to the employee’s home. If the individual is unable to explain their case because of a disability, then a Tribunal may view it as a reasonable adjustment to require you to allow a member of the family, a friend or a professional representative to attend the meeting.

Before contacting the employee about a meeting, you should consider whether to continue discretionary sick pay up to the date on which you meet or any subsequent decision (depending on the stage reached).

In many cases the monies involved in continuing to pay the employee will mean that the financial benefit to the business from ceasing to pay will be outweighed by the benefits of being seen to treat the employee more generously during the consultation process.

What about the right to be accompanied to a meeting?

An employee has a statutory right to be accompanied (by a trade union representative or a fellow worker) to a meeting that could result in any of the following:

  • A formal warning being issued to a worker by the employer.
  • The taking of some other action in respect of a worker by the employer.
  • The confirmation of a warning or some other action.

Meetings simply to investigate or consult would not usually qualify for accompaniment but if it is likely, or becomes clear during the course of a meeting, that a formal warning or dismissal could happen, the meeting should preferably be concluded, and a formal hearing arranged at which the individual will have the right to be accompanied.

Regardless, it is good practice for employers to give this right. It will be in the employer’s interests if the employee has been given the best opportunity to state their case, and this will help establish procedural fairness should the matter ultimately result in dismissal.

Can you dismiss an employee on long term sick?

Once the business has exhausted all options, including considering whether there are any other roles and/or adjustments that can be made for the employee, you may decide that you have done everything you can. Legal advice should always be sought as early as possible and, in any event, prior to any dismissal.

You should consider whether they are able to return to work in the near future and/or whether there are any reasonable adjustments that can be made in order to assist a return, or phased return, to work. You will also have to show why the dismissal is necessary, including the impact their absence has had on the business and why the absence can no longer be supported by the business.

The most important thing about this, is to ensure you are following the correct processes and are being fair and reasonable in all the circumstances. Don’t guess, or make any decisions on a whim, and always, always seek legal advice! It could be the difference between a smooth exit and a Tribunal claim!

Reach out to us and we can help you get managing long-term sickness right!

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How should you deal with an employee who is off sick, long-term?

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