Our seminar on 11 June sparked a lively debate that focused on the challenges employers face when dealing with the delicate subject of sickness absence.
As a follow-up to the seminar we have compiled a list of 8 key points:
1. Does the employee’s condition amount to a disability? Keep an open mind.
Although an employee’s condition may not fall within the legal definition of a ‘disability’ when the question first arises, as time passes and their prognosis evolves, that may change. Consider the legal test for disability on a regular basis and keep updated about the employee’s condition.
2. Medical reports – maximise their value.
When obtaining a medical report, think very carefully about the questions you ask. Provide the medical professional with all relevant background information and a list of specific questions. A focused report will help you assess the appropriate next steps, including the possibility of making reasonable adjustments or even dismissal.
3. Medical reports – review them critically.
When it is clear from a report that the medical professional has made incorrect assumptions or simply cited incorrect information, you must keep an open mind and should not blindly rely on the report. In particular, if the report does not give any explanation for why an employee is not disabled, then it is likely to be dangerous to rely on that opinion without clarification.
4. Reasonable adjustments – pro-actively consider them at an early stage.
Remember, if an employee’s condition amounts to a disability, you are under a positive duty to minimise the obstacles that a disabled employee faces (where reasonable to do so). Consulting with the employee at an early stage will demonstrate that you are adopting a supportive and proactive approach and complying with this obligation.
5. Capability or disciplinary? – Be wary of the latter unless you have clear evidence.
In some cases, sickness absence may not be genuine. We would advise that you err on the side of caution and, unless you have clear evidence that points to malingering, do not initiate disciplinary proceedings based on ‘misconduct’. However, instigating disciplinary proceedings if an employee continually fails to follow your sickness absence procedure is permissible.
6. Keep up contact, be sympathetic but don’t be intrusive.
A balance needs to be struck between demonstrating concern and maintaining a sufficient distance to ensure that an employee does not feel pressurised particularly when the condition complained of is cited as ‘work related’. That said, the individual remains an employee and is under a duty to keep you informed of their condition, prognosis and likely return.
7. Beware, compensation for disability discrimination is uncapped and a claim can be brought from day one of employment.
Where there is any suspicion that an employee (or worker) might be disabled, you should implement and follow a proper procedure from day one.
8. Contractual sick pay.
Be sure to check the relevant provisions in the employment contract or sick pay policy, as an employee may be entitled to receive full pay in a period of sickness absence. We recommend that any contractual sick pay is provided for a relatively short period, following which it is discretionary allowing you flexibility to pay more in appropriate circumstances. It will also deter malingering employees staying off sick for long periods if they know they may not be paid in full.