Long-term sickness absence: top 10 tips

Sarah-Marie Williams of Clyde & Co provides her top 10 tips on handling long-term sickness.

1. Keep a paper trail

Keeping a paper trail is essential when dealing with long-term sickness. Document all communications between you and the employee, from telephone calls to meetings, and any discussions with medical advisers. An accurate written record of events will assist decision-making and is imperative in defending any claims for unfair dismissal, disability discrimination or stress-related personal injury.

2. Investigate the absence

At the earliest opportunity ascertain the reason for the employee's absence, together with details of how long he or she is likely to be away from work.

In circumstances where you have grounds to believe that the employee is not ill and where he or she is not prepared to cooperate with you, for example by not consenting to being examined by an independent doctor, consider taking the employee through the company disciplinary procedure.

3. Establish the current medical position

Although basic details of the employee's illness will be recorded on his or her sick notes it is advisable to seek further information by way of a full medical report. Request that the employee undergo a medical examination by a GP or, preferably, the company doctor. Note, however, that compliance with the requirements of the Access to Medical Reports Act 1988 is essential where a GP or other treating physician prepares the report. In such circumstances the Act permits the employee to review the report prior to it being sent to the employer.

You are advised to instruct the company doctor or GP formally in writing. In order to ensure that the doctor provides the necessary information the letter should explain the nature of the work that the employee performs and expressly request information on:

The medical report will assist in establishing whether the employee is a disabled person under the Disability Discrimination Act 1995 (and thus whether there must be compliance with the requirements of the Act). The report will also help to identify whether the employee is malingering or taking fraudulent sick leave, so is likely to be helpful in avoiding liability for unfair dismissal if the employee is subsequently dismissed.

If the employee does not consent to providing a medical report you are entitled to act on the facts currently available.

4. Maintain regular contact

Unless the medical advice suggests that regular contact from the company will exacerbate the situation, contact the employee on a regular basis to check on his or her progress. Employees should not be made to feel isolated and, where appropriate, they should be kept aware of what is going on at the company. Make a note of when to call the employee, and if he or she is not available keep a record of any messages left. Arrange to meet the employee and, if appropriate, consider a home visit. In some cases, for example those involving stress-related absence, you may wish to contact a relative to ascertain details of the employee's progress.

It must be noted, however, that there is no general obligation on an employee to keep in touch with you during sickness absence, other than to provide sick notes and/or medical reports.

5. Ensure that medical certificates and reports are provided

Medical certificates are required for the whole of the period of absence so you should ensure that they are submitted on a regular basis and that any requested medical reports are provided. Chase any outstanding certificates or reports promptly and follow up any medical advice that suggests that a specialist referral is required. You may find it useful to keep a chronological list of the certificates/reports received, together with a brief description of the diagnosis.

6. Consult with the employee

Consultation with the employee is essential and you should make every effort to arrange face-to-face meetings with him or her. In any event, you should enter into discussions with the employee as to his or her progress, when he or she is likely to be able to return to work and whether there are any ways in which you can facilitate his or her return. Such discussions will often bring to light facts of which you were previously unaware. For example, consultation may demonstrate that the employee is able to return to work sooner, provided that it is a gradual return to work or that his or her workload is reduced. In some cases a move to part-time working may be a solution for both the company and the employee.

In circumstances where the employee is unable to travel to his or her normal place of work, consider visiting the employee at home or, if this is inappropriate, at a neutral location.

Discussions with the employee should take place at the start of the illness and periodically throughout its duration and he or she should be informed if the stage when dismissal may be considered is approaching.

7. Consider reasonable adjustments

If the employee is disabled under the Disability Discrimination Act 1995, you will be required to consider reasonable adjustments. Ensure that the employee is asked to suggest any adjustments that can be made to ease his or her return to work and seek medical and occupational health advice in relation to possible adjustments. Examples of steps that the company may be expected to take include making adjustments to premises, allocating some of the employee's duties to another person, altering his or her working hours, acquiring or modifying equipment, providing a reader, providing supervision, assigning the employee to a different place of work or transferring him or her to fill an existing vacancy.

Keep a written record of any adjustments suggested, the consideration process undertaken by the company and, if relevant, details of why any suggested adjustment is considered to be unreasonable.

While you are specifically required to consider making reasonable adjustments in respect of those employees who are disabled under the Act, it is good practice to consider what reasonable adjustments can be made in respect of any employee absent on long-term sick leave.

8. Ensure that the human resources department and the employee's managers work together

Meet the employee's managers on a regular basis to discuss his or her absence and ensure that a unified approach is presented to the employee at all times. Note, however, that sickness records constitute sensitive data under the Data Protection Act 1998, so, unless the employee's written consent is obtained, managers should be provided with his or her sickness records only in so far as it is necessary for them to carry out their managerial role. Managers should be concerned only with the impact of the medical condition on the employee's fitness for work rather than with the actual medical details themselves.

Where appropriate, inform the employee's colleagues how to respond to any queries from customers or clients with regard to his or her absence.

9. Watch out for stress

Note that reference to stress or depression on a sick note may indicate a mental impairment under the Disability Discrimination Act 1995 if the medical condition is caused or exacerbated by the stress.

Be alerted too to the fact that it may give rise to a claim for personal injury. The issue for employers is whether they were aware, or should have been aware, of the circumstances, and failed to do anything about the situation. Be particularly careful when dealing with an employee returning to work following a period of alleged work-related stress. It is critical to investigate and deal with any root cause of the stress (including considering reasonable adjustments), as a further period of work-related stress could give rise to a personal injury claim.

10. Consider whether dismissal is justifiable

Although dismissal for ill health is a potentially fair reason for dismissal, as it relates to the individual's capability to do the work for which he or she is employed, be particularly careful when considering dismissing an employee who is a disabled under the Disability Discrimination Act 1995.

In deciding whether to dismiss an employee on long-term sick leave, carefully balance the nature of the employee's illness and its likely duration against the need to have the work done, the effect that the employee's absence is having on other employees and the need for a replacement. The employee's length of service should also be taken into account.

Reviewing the advice of medical advisers is essential when considering dismissing an employee on long-term sick leave. Clearly, where the medical opinion indicates that there is no prospect of the employee returning to work within a reasonable period, and where the company is able to justify not keeping the position open any longer, you are more likely to avoid liability for unfair dismissal and/or disability discrimination. Further care is necessary if there is any suggestion that the medical condition has been caused or exacerbated by work-related stress.

Next week's article will consist of the answers to some frequently asked questions on long-term sickness absence.

Sarah-Marie Williams is a solicitor at Clyde & Co (sarah-marie.williams@clydeco.com)

Further information on Clyde & Co can be accessed at www.clydeco.com