Dealing with long-term sickness can be daunting. We present everything you wanted to know about dealing with long-term sickness absence but were afraid to ask, from legal expert Rayner Jones.
Coping with staff sickness absence can be a major headache for employers. Dismissal is always a last resort. But, sometimes, it is the only option where you have done what you can to get the employee back to work on a reliable basis, but they are still off on long term sick or persist in having lots of short-term absence.
Employers recognise that employees will be sick from time to time and do not expect - or want - employees to attend work if they are unwell. However, it is difficult for employers to provide cover for employees who are sick on a frequent but unpredictable basis or on a longer term basis.
In this feature we answer one or two questions that have recently been put to us by employers – and which are far from uncommon.
Frequent short term absences
I have a sales manager who, over the last year or so, has had lots of time off – odd days here and there. She has just been given a written warning for shouting at a customer. Can I now give her a final written warning for her ongoing absence problems?
The first point to remember is that sickness absence is not a disciplinary issue. The procedure you should follow is almost the same as the disciplinary procedure. But – it is not disciplinary. The employee is not to blame. Be careful not to combine disciplinary and health issues. You have to deal with these separately. You cannot issue a written warning for misconduct and then move on to a final written warning if the employee has lots of odd days off sick.
If you combine disciplinary and sickness issues in the same process, and go on to dismiss, the dismissal is likely to be unfair.
When should I start the sickness absence management procedure?
Where the level of absence becomes a problem. What level is a problem? It’s up to you. Look for patterns and trends. Certain days of the week or certain shifts being missed. Days off before or after holidays, for example
What does the procedure actually involve?
It’s quite straightforward really. See checklist below – but be aware that this is just a brief summary and is not comprehensive. You must take legal advice before taking action.
• Informal meeting
• Go through absence records and the reasons given for absences
• Explain why you are concerned. Ask for an explanation
• Ask if there might be any underlying medical reasons. If there might be, obtain a medical report from their GP and/or consultant
• Write to the employee referring to the absence history, the problems this is causing the company and explaining that an immediate and sustained improvement is expected.
• If there is further sickness absence, move on to a formal meeting
• Go through the same discussions as with step 1
• Following the meeting, issue a formal written warning
• If there is further sickness absence, hold a further formal meeting
• Follow up with a final written warning
• Final meeting
• Dismissal and the right to appeal.
Long term absences
We have a receptionist who has been off sick with mental health problems for approximately three months. We could really do with organising a permanent replacement. What can we do? Can we do something now or do we have to wait?
How you deal with this absence may differ depending on whether or not you operate a Permanent Health Insurance (income replacement during incapacity) scheme. If you operate such a scheme the employee might lose benefits under the scheme if they are dismissed. So, it might make sense to keep the employee on and leave it to the insurers to take the necessary steps to facilitate a return to work – and possibly stop paying them if they are able to return but do not do so.
You do not have to wait too long before starting the procedure. How long should you wait? It’s up to you. It depends on how urgent your need is to have someone doing the job on a reliable basis. In this case, I see no reason to wait any longer. As regards resolving the situation, the procedure is summarised below.
Write to the employee. Explain why you want to obtain a medical report and that you need their consent to do so.
Once you have their written consent, write to their GP and/or Consultant.
Once you have the medical report, write to the employee with a copy and invite them to attend a meeting. At the meeting, discuss the medical report, prognosis, likely return to work, any adjustments that you might be able to make to facilitate a return to work etc.
If the employee is unable to return to work in a reasonable time frame either to their old job or any new job that might be available – taking into account any adjustments that you can reasonably make – you can dismiss (on notice). You must give them the right to an appeal.
These situations aren’t nice but you have to deal with them. Don’t ignore them. Act promptly and consistently – and persevere. If you follow a proper procedure, are consistent and take account of any disability issues, it will be hard for an employee to bring/succeed in a claim against you.
Rayner Jones is a partner at Lester Aldridge LLP