Managing staff on long-term sickness absence is often one of the most challenging areas for HR practitioners. Frequently they will feel caught between a rock and a hard place: between the employer’s desire for certainty (the individual’s return to work or exit) and the duties and obligations towards someone really struggling to cope. In this article we look at the careful balancing act that is often required, the important rights of which you should be aware, and some practical guidance on handling the absence.
Where (and when) do you start?
There is a danger that out of sight means out of mind. The key, wherever possible, is to try to start dealing with absence as early as possible.
That is not to say making a final decision straight away, but rather that on-going absence should always be on the radar and that a process (even just the early stages of one, such as obtaining medical evidence) is in motion.
The legal bit
The starting point is always to look at the legal considerations.
What does the contract say?
The contract will often contain important provisions dealing with sickness absence reporting, sick pay, submitting to medical examination and (in some cases) rights to permanent health insurance (PHI).
Are there any applicable policies or procedures?
What do your own policies and procedures say? These may include schedules for meetings, absence triggers, a staggered warning process, or designation of responsibilities for various stages in the process. In the event of a dispute, a failure to follow the employer’s own policies and procedures without reasonable cause can be fatal to your case.
Protection from unfair dismissal applies to all employees with two or more years of continuous service. It requires the business to show a potentially fair reason for dismissal, which in the case of genuine long-term absence will usually be an employee’s “capability”. The business then needs to be able to demonstrate that, in all of the circumstances, it acted reasonably in treating that reason as sufficient justification to dismiss, and followed a fair procedure in doing so.
Ultimately, the question a tribunal would ask is whether the business could reasonably have been expected to keep the job open for the employee any longer.
So far, so (relatively) manageable. The additional challenge then comes in the form of disability discrimination protection. Unlike unfair dismissal rights, there is no qualifying period of service required for protection from discrimination.
The definition of “disability” for the purpose of the Equality Act 2010 (the Act) is a physical or mental impairment which has a substantial, long-term adverse impact on an individual’s ability to carry out normal day-to-day activities. It is a legal, rather than a medical test, which can often leave businesses none the wiser as to whether the root cause of an individual’s absence will mean that they are entitled to protection.
Businesses therefore need to tread even more carefully to ensure that, in managing absence, they are also complying with their obligations under the Act. This is particularly important in two areas:
- Discrimination arising from disability
Discrimination arising from disability occurs when an individual is treated unfavourably because of something arising from the disability. A typical example would be an individual dismissed because they have taken a lengthy period of absence. If the reason for the absence is because of a disability, dismissal could be discriminatory. To avoid a finding of discrimination in these cases the business will need to show that its decision was a proportionate means of achieving a legitimate aim.
- Duty to make reasonable adjustments
The other crucial consideration is the duty to make reasonable adjustments where, as a result of disability, an individual is placed at a substantial disadvantage. This can apply to a wide range of circumstances: businesses may need to change the way things are done in the workplace, they may need to make physical changes to the office or they may need to provide extra support or aids. The duty to make reasonable adjustments applies to the process followed as well as the role. What is a “reasonable” adjustment will depend on all of the circumstances, including the size and resources of the business. Showing that an adjustment is not reasonable is a high threshold to meet.
With a keen eye on the legal rights involved, a thorough investigation and consultation with the individual (whether it leads to a successful return to work or ultimately may result in dismissal) is essential. The obtaining of medical evidence and individual consultation will form a key part of this.
Businesses are not expected to be medical experts. So, when dealing with lengthy absence, clear medical evidence is crucial to being able to decide on the appropriate steps to take. The individual will need to provide their explicit consent to obtaining medical reports, and the business will need to process information about an individual’s health in line with data protection principles.
A key part of obtaining a medical report is asking the right questions. This can include details of the illness, prognosis and any adjustments which may be required to assist them in returning to work. It is also an opportunity to ask the questions which will help to determine whether the individual has a disability – and so whether the additional rights which come with this are triggered.
Obtaining a medical report is all part of making an informed decision. But decisions cannot be taken in a vacuum, and it is important to engage with the individual to determine the appropriate next steps. This can be challenging where someone is absent from work and so will often mean being flexible – holding meetings at their home or over the telephone, allowing extra time or agreeing to receive comments in writing. Difficult as consulting may be, it will only be in the very rarest of cases (where it proves simply impossible to get engagement from the individual) that a decision can be made without it.
Making a decision
Medical advice and individual consultation will help the business to make an informed decision about the appropriate next steps. If, in spite of best efforts, it proves not to be possible to get the individual back to work and dismissal becomes a possibility, there are some key steps to take before a decision is made. These will include:
- reviewing medical advice to ensure it is up to date (and obtaining an updated report if it is not);
- considering whether there are any alternatives – including alternative roles and other adjustments that can be made; and
- thinking carefully about whether the business can reasonably be expected to wait any longer for the individual to return to work, giving particular thought to:
- the nature of the illness and the prognosis;
- the length of absence and the impact on the business;
- the importance of individual to the business and the need to have someone doing that work;
- the individual’s length of service;
- the cost of continuing to deal with absence;
- the size and resources of business; and
Managing long-term sickness absence can be a lengthy and complex process. It will be inherently uncertain and can change at various times. Finding the right line between the needs of the business and the rights of the individual can be challenging, but following the steps set out will assist in making fair and proportionate decisions.