Long Term Sickness Absence – 5 Key Considerations for Employers

If you’re a business and unsure what to do when it comes to managing long-term absences from work due to sickness, as well as following your absence management policy, here are some essential considerations for employers.

1. Do you have Medical Evidence to Make Informed Decisions?

Once it is clear that an employee’s absence is going to move from being a short-term to a long-term absence, and an immediate return to work appears unlikely, it may be necessary to write to the employee requesting consent for you to write to their GP or specialist for a medical report regarding their condition. Please be wary that to obtain consent you must ensure the employee is advised as to why a medical report is needed and does not, for example, cover issues not discussed with the employee. You will need to ensure that the consent form and the letter requesting a medical report to the GP or Specialist is consistent with the explanation given to the employee for the requirement for a medical report. Please ensure you seek our advice in obtaining consent as you must ensure that any documentation is both compliant with AMRA 1988 and the UK GDPR and DPA 2018. You will then ask the GP or specialist to answer a series of questions to ascertain how the employee’s current health condition is impacting their return to work and whether any adjustments can be made to facilitate their safe return.

2. Have you Sought Specialist Occupational Health Advice?

Increasingly, GP’s do not want to commit to making recommendations of reasonable adjustments for an employee to return to work. Therefore, we would strongly advise you to seek a specialist occupational health report which again you will need the employee’s consent for. Typically, contracts of employment will contain an express right for the employee to consent to a medical examination at the Company’s expense with an occupational health specialist nominated by the Company. The occupational health report once finalised (and an employee has consented to you receiving a copy of the same) should guide what you do next in the process.

3. When are you Under a Legal Duty to Consider Reasonable Adjustments?

Once you are in receipt of a medical report and/or occupational health report you should have been advised by the specialist whether the employee is defined as disabled for the purposes of the Equality Act 2010. Under the Equality Act 2010, disability is defined as ‘any physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.’ You will only be under a duty to make a particular proposed adjustment (and hence only in breach of the duty to make reasonable adjustments if that adjustment has not been made) if it is reasonable in the circumstances to expect you as the employer to make that adjustment.

The Equality and Human Right’s Commission’s (EHRC) code of practice came into force on 6th April 2011. The code suggests some factors which might be taken into account when deciding what is a reasonable step for an employer to have to take.

Some commonly implemented examples include:

• Allocating some of the disabled person’s duties to another worker.

• Altering the disabled worker’s hours of work or training.

• Assigning the disabled worker to a different place of work or training or arranging home working.

4. Is it Reasonable for us to Consider Dismissal if the Employee is not Capable of Returning to Work?

You will need to establish with the benefit of medical evidence (ideally an up-to-date occupational health report), the nature of the health condition and its effects on the employee, how long their absence is likely to last and the effect the absence of the employee will have on the business. If the properly documented conclusion is that there appears to be no likely return to work for the employee, then dismissal for capability should be considered by following an appropriate procedure.

Please note that in terms of what is reasonable, the size of the employer is likely to be relevant, as a small employer may be less able to deal with a long absence than a larger employer, which may be able to reallocate employees to cover the absent employee more easily for an extended period.

5. What Process do we Need to Follow to Terminate an Employee’s Employment for Capability if we have been Unable to Facilitate a Return to Work?

It is important that you follow your own absence management procedure, but in the absence of one, please get in touch and we can advise of the best procedure to follow.

How Hallidays HR Can Help

If you would like to discuss any of the above in more detail, then please do not hesitate to contact us on 0161 476 8276 or email hr@hallidayshr.co.uk. And of course, visit the website: https://hallidays-hr.co.uk/ and our LinkedIn page: www.linkedin.com/company/hallidays-hr/