Employers are often wary of dealing with employees who have been off sick for a prolonged period.
However, matters should be dealt with formally and preferably before there is an unacceptable level of disruption to the business. Employers should explore:
> what medical condition(s) the employee is suffering from;
> whether the employee is able to return to work in the foreseeable future; and
> whether the employee has a disability and, if so, whether there are any adjustments that the Company implement to facilitate the employee’s return to work.
Depending on the illness in question, employers should consider a request that the employee attends an examination with an independent specialist doctor or occupational health expert. If an employer is aware of a potential disability and proceeds to terminate an employee’s employment without considering up to date medical evidence then the dismissal is likely to be unfair and/or discriminatory.
If medical evidence states that the employee will be able to return to work in the near future, subject to adjustments being implemented, the employer will be obliged to consult with the employee about implementing those adjustments. Case Law in this area states that any decision to terminate employment on grounds of ill health will be unfair unless there is medical evidence that the employee will not be able to return to their role in the foreseeable future.
Even if the medical evidence states that an employee will be unlikely to be able to return to work in the foreseeable future an employer must follow a fair procedure before dismissing the employee on grounds of ill health. In particular an employer will need to show that it:
> investigated the nature, extent and likely duration of absence by obtaining up to date medical reports;
> kept in contact with the employee throughout the period of their absence especially in relation to the medical evidence received;
> considered the importance of the employee to the business, the impact of their continued absence on the business and the difficulty and cost of continued absence before contemplating dismissal;
> consulted with the employee and considered whether there is suitable alternative employment; and
> considered other alternatives eg. early retirement on grounds of ill health.
Employers will need to consider if the employee is entitled to any permanent health insurance or ill health retirement under a pension scheme.
Employers with pension schemes that provide early ill-health retirement benefits should ensure that employees are considered for such benefits before a decision to dismiss is taken.
The Government has launched an independent Health and Work Service to provide state funded occupational health assessments to employees who are off sick for four or more weeks.
The referral service will be introduced regionally on a phased basis during 2015.
Employers will still need to take great care and take legal advice on how to deal with the medical advice received from the new service.
Taylor Walton can assist employers to effectively manage employees who are on long-term sickness absence as well as providing specialist advice in relation to sick leave policies and procedures.
We will be looking at managing sickness absence in greater detail at our Employment Law Workshops held at our Luton office on 24 February and 10 March 2015 and at our St Albans office on 3 March 2015 at 4pm.
Alix Beese is a Solicitor in the Employment Law Department at Taylor Walton Solicitors, which has offices in Luton, Harpenden and St Albans and provides effective legal solutions to businesses and individuals across Bedfordshire, Hertfordshire and the South East. Alix can be contacted on 01582 731161 or email firstname.lastname@example.org
The information in this article was, at the time of publication, believed to be a correct statement of the law. However, readers should seek specific legal advice on matters arising, and no responsibility can be accepted for action taken solely in reliance upon such information.