When does an absence become long-term?
Long-term absence is often defined as an absence of more than four weeks, although this will vary according to your attendance policy and procedure.
How does the management of long-term absence differ from the management of short-term absence?
Your main aim should be to support and help facilitate the employee’s return to work.
What sort of things should you do to achieve these aims?
Carry out regular reviews with the employee, often referred to as welfare meetings, to ascertain the current state of health and readiness to return, as well as anything that you can do to facilitate their return.
Should I involve HR and OH?
It’s always worthwhile consulting your HR department, and more often than not obtaining a medical report from an Occupational Health Specialist to support you with facilitating the employee’s return.
So what happens once the employee has been assessed by an OH specialist?
The OH specialist will help you to identify what further actions you will need to take to support the employee’s return, if and when the person is likely to return, and a return to work plan.
Does the employee have the right to see the report from the OH specialist before we see it?
Yes, the Access to Medicals Reports Act 1988 gives this right to the employee, and having seen the report, the employee has the right to request that access to it can be withheld from you, or alternatively ask the OH specialist to make corrections to the report, and if the specialist refuses to make amendment to it, the employee can require a statement of their views to be included indicating where they disagree with the report.
So, if the employee asks for the report to be withheld what can you do?
You would then inform the employee that a decision relating to the employment may have to be made without the benefit of access to their medical report.
Another big issue that employers worry about is whether an employee on long-term sick may well be disabled under the Equality Act 2010,?
If an employee is disabled, under the Act they will have the right not to be discriminated against and also employers must make reasonable adjustments for them. A disability includes both physical and mental impairments that last or are expected to last more than 12 months and they are substantial in terms of their effects on the person’s normal day-to-day activities.
What should you be thinking of to manage this?
You should consider if reasonable adjustments can be made for the employee and a reasonable adjustment could be changes to duties or working hours, or a transfer to another job. To dismiss a disabled employee for poor attendance may very well amount to discrimination arising from disability.
So when is dismissal on the grounds of long-term ill health appropriate?
Well dismissal for this reason should be the last resort and only after all other options have been fully considered and discussed with the employee, after recent medical advice has been sought, and after all reasonable adjustments have been made to support the employee’s continuing employment prior to taking any final decision. Dismissal would not normally be appropriate when an employee is still in receipt of any level of contractual sick pay.
The following case O’Brien v Bolton St Catherine’s Academy provides some good learning points:-
The case involves a teacher that went on long-term sickness absence in December 2011 after being assaulted by a pupil. In January 2013 after a formal incapacity hearing, the academy decided to dismiss Miss O’Brien on the ground of capability, due mainly to her length of sickness absence and the lack of any convincing indication of when she would be able to return. Miss O’Brien appealed this decision with new medical evidence that confirmed she was fully recovered, however the academy were not satisfied that the fresh medical evidence conclusively established that she was fit to return and decided to uphold the decision to dismiss.
Miss O’Brien then brought various claims to tribunal and the case actually went all the way to the Court of Appeal. The Court of Appeal went onto hold that the academy’s decision to disregard the new medical evidence without a further assessment and dismiss Miss O’Brien amounted to both discrimination arising from disability and unfair dismissal.
What should we learn from this case?
- Always seek a refreshed medical report in advance of a dismissal hearing
- Ensure you have reviewed if there are any other jobs that the employee could do – you may need to obtain the employee’s prior agreement as the employee’s contract may not provide for redeployment
- Be careful about dismissing an employee where they are in still in receipt of sick pay, have an ill-health retirement scheme or permanent health insurance or similar as you shouldn’t dismiss an employee without having considered whether or not ill-health retirement or payments under any salary continuation insurance scheme are available.
If you need any help managing long-term absence cases please speak to one of the SAM team, who can arrange for an HR advisor to contact you. If you don’t already benefit from SAM, the SAM software system helps you manage long-term absence by keeping track of conversations, meetings, documents all in one place and setting alerts for when the next checkpoint should be so you don’t loose track. If you would like a demonstration of the SAM software call 01924 827869 or download our Information Pack