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Handling long-term absence - part 2

fit for work
Make sure you know how to handle long term sickness correctly.

In this second part of a two part article, Amanda Jefferies explains how handling long-term absence in the workplace is a delicate matter.


In part 1 of this article last month (see here), we outlined some of the steps that you should take in the case of long term sickness absence. In addition to those steps, we recommend that you consider the following matters:

Consider whether the employee’s illness may also amount to a disability within the meaning of the Equality Act 2010. It covers employees with the progressive conditions of cancer, HIV or multiple sclerosis from the point of diagnosis. Of particular importance is the duty on employers to make reasonable adjustments. This means making such changes as are reasonable to prevent any work provisions, criteria or practices, or any physical feature of the work premises, from placing a disabled employee at a substantial disadvantage compared to a non-disabled employee.

Meaningfully consult with the employee once the medical report has been received to go through the medical evidence and to discuss whether any adjustments could be made to the employee’s job duties, work practices or workplace to facilitate their return to work, for example on a phased basis. Ensure you have the employee’s express consent to any adjustment which is incompatible with the terms of their employment contract, such as a move to a lower-paid role. In addition, be aware that pay protection may be a reasonable adjustment, in conjunction with other measures, to get a disabled employee back to work and counter their disadvantage due to disability. It will depend on whether it is reasonable to take that step, which is determined on a case-by-case basis taking into account factors such as the size and resources of the employer. Pay protection won’t, however, be an everyday event.

Amanda Jeffries
Amanda Jefferies, is a specialist employment solicitor and director of Bradley and Jefferies Commercial Solicitors. She advises clients on all aspects of employment law, from drafting contracts of employment and other policies and procedures, to defending all manner of Employment Tribunal claims. She has wide experience of presenting workshops and seminars and is widely regarded as a leading speaker upon employment issues and has spoken at prestigious events such as the ACAS annual conference. You can visit the website here or call her on 01332 221722.

Consider the importance of the employee and their job to the business, their length of employment, the duration of their absence, their past sickness record, the anticipated further length of absence, the impact their absence is having on the business and the difficulty of continuing to deal with their absence (for example, could an agency temp be used to cover for them?).

Think about whether the employee could be offered alternative employment more suitable to their state of health (although you do not need to go so far as to create a special job for them) or whether there are any other options which fall short of dismissal.

After due consideration of all factors and medical evidence, when contemplating the employee’s dismissal, write to them setting up a further consultation meeting.

Hold a meeting with the employee to discuss the situation further (including the possibility of dismissal) and allow them to make representations. Allow the employee to be accompanied at the meeting by a work colleague or trade union representative.

Where the employee has mental health issues, consider allowing them to be accompanied at any meetings by, say, a family member or support worker (including investigatory meetings).

Only take a decision to dismiss an employee in the light of up-to-date medical evidence; obtain a fresh medical report if necessary.

Confirm any dismissal decision in writing and identify the reason for dismissal and the effective date of termination. Give the employee an opportunity to appeal against the dismissal decision.

Ensure that the employee’s contractual and statutory entitlements are met on dismissal, for example, holiday pay and notice pay.

If the employee appeals, hold an appeal meeting and then confirm the decision on the appeal in writing.

If the employee returns to work after long-term sickness absence, offer support and assistance to ease their return to the workplace. Offer a phased return to work if necessary and ongoing support and counselling.

If the employee has the benefit of permanent health insurance cover or ill-health retirement provisions within an occupational pension scheme, always take specific legal advice before contemplating dismissal.

Be aware that when dealing with long-term sickness absence, there is no rule of law which sets a period of absence after which a dismissal will be fair or non-discriminatory; it will turn entirely on the facts and circumstances of the individual case, including, in particular, the information contained in the medical report.

March 2017


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