The latest figures show that more patients than ever are awaiting treatment on the NHS, with the total backlog in July 2022 sitting at 6.84 million. This statistic is over double the figure from September 2015 which was 3.31 million. The increased backlog in the NHS may result in those awaiting treatment being unable to work for significantly longer periods than first anticipated. Statistics show that the number of workers with long-term sickness, defined as being off work due to incapacity for more than four weeks, reached a high of 2.5 million in July 2022. Employers managing such absences will need to consider what adjustments may be required for those employees, any statutory sick pay due, compliance with their sickness/absence policy and lastly whether an ill health dismissal should be considered.

Considerations whilst an employee is off sick

If an employee is unable to work, they will be entitled to statutory sick pay and/or contractual sick pay in certain circumstances. It is important to correctly determine whether they are entitled and how much they are entitled to. An employee who has taken sick leave for more than seven days in a row will have to provide their employer with a "fit note", usually obtained from a healthcare professional. It is also advisable for the employer to maintain appropriate contact with the employee on sick leave. What is appropriate will depend on the specific circumstances such as the employee's job, the nature of the employee's illness and the size of the employer's business.

Employers facing long term absences should consider whether the employee may be disabled and, if so, whether any adjustments are needed to accommodate the employee's illness. Under the Equality Act 2010, if an employee has a condition which counts as a disability the employer is required to make reasonable adjustments to enable them to continue with their role or return to work where possible.

An illness will be counted as a disability if it is a mental or physical health impairment that has a substantial and long-term effect on the employee's ability to carry out normal daily activities. "Substantial" is interpreted as something more than minor or trivial so is much broader than many would expect. "Long-term" generally means has lasted or is expected to last 12 months or more. "Normal daily activities" varies depending on the circumstances, with the focus being on the individual as opposed to what is normally expected from the population as a whole. In the case of Banaszczyk v Booker Ltd, the Employment Appeal Tribunal accepted that lifting packages of up to 25kg and loading them onto pallets was a normal activity for that particular individual. The employment tribunal will usually focus on activities outside work that are normal day-to-day activities, such as shopping and driving to assess disability status, rather than the requirements of the employee's role.

Unfair dismissal claim

Given the increasing backlog of people waiting for treatment on the NHS, an employee may be unable to get the treatment they need within a reasonably foreseeable period. With many surgeries being delayed and postponed, there is often no definitive date of when the employee should be able to return. Before the employer makes the difficult decision to dismiss the employee due to ill health/capability, there are some important steps to take to ensure that the risk of a successful claim of unfair dismissal/disability discrimination is minimised.

These steps include making reasonable adjustments as mentioned above and giving the employee a reasonable time to recover. Formal meetings with the employee should be held to discuss the prospect of recovery, alternative roles (if applicable), and adjustments. It is recommended that advice from a doctor or occupational health provider be sought to gain a professional opinion on the prospects of returning to work and any adjustments that could be made. All avenues should be fully explored prior to making a decision on dismissal due to incapacity/ill health. Failure to do so could result in a successful unfair dismissal claim and/or disability discrimination claim. Compensation will usually include loss of earnings and, in discrimination cases, injury to feelings.