A member of staff on sick leave for an extended period can be costly for a small practice. Expert employment solicitor Debbie Sandler offers advice.
Many employers feel helpless and frustrated in the face of long term sick leave and rather than actively managing the situation, simply let it drag on for fear of ‘doing the wrong thing’.
Ironically, this can have an adverse effect and lead to a breakdown in the employer-employee relationship. This article will look at how to manage the situation as an employer.
Employers need to have clear sickness and absence policies explaining how sickness absence will be managed.
These should explain by whom and when absence needs to be notified, and how regularly updates should be provided. Sickness certificates should be sought to verify the absence and where fit notes are provided these should be discussed with employees.
Where the employee does not comply with this policy, the likely consequences need to be made clear, such as a loss of sick pay or disciplinary action.
Long term absence is not only costly in financial terms but also places a strain on the employee’s colleagues. Employers therefore need to know the likely duration of any absence to decide whether to employ a temporary worker or try to ‘muddle through’.
Much will depend on the nature of the employee’s work and the likelihood of finding a suitably trained temporary worker.
GP managers need to be trained and supported in managing and enforcing absence policies and ensuring any action taken is consistent across the practice.
This is important in order to avoid allegations of unlawful discrimination in the way absence is handled. In order to do this, the employer must monitor employee absence and how it is handled e.g. in terms of any discretionary payments made and the action taken.
Employees on long term sick leave can become isolated and feel abandoned by their employers. This can be overcome by arranging to telephone or visit them at intervals (depending on the nature of the illness) to continue the dialogue about their illness and to update them on any developments at work.
Where it is clear an employee is to be absent long term, further medical information should be sought to decide how to manage the absence.
The employee will need to provide written consent to this but a medical report should be sought, ideally from an occupational health specialist, about the nature of the absence, its likely duration, and what, if any, adjustments can be made to encourage the employee’s return to work.
This should then be discussed with the employee at a meeting and all options explored. Further medical reports may be necessary before deciding how best to proceed.
Contracts of employment should ideally include a clause requiring the employee to attend a medical examination for these purposes and disciplinary action can be considered if the employee refuses to abide by this term.
Where the employee is reluctant to provide a medical report, the employer can take action based on its knowledge of the situation but this is not ideal.
Ultimately if an employee is unable to carry out his role on health grounds, he can be dismissed on the grounds of capability. However, it is imperative that such decisions are taken on the basis of clear medical evidence and in consultation with the employee.
Employees on long term sick leave are likely to be ‘disabled’ persons for the purposes of the Disability Discrimination Act 1995, which requires employers to consider making reasonable adjustments, such as changes to working hours and providing additional support to employees as an alternative to dismissal. Legal advice should be sought early on to minimise the risk of any claims.
Where dismissal is contemplated, it is important that the Acas Code is followed. This requires that the employee is notified if the employer is contemplating dismissal and is invited to a meeting to discuss further. He has the right to be accompanied to the meeting and should be allowed to appeal against the final decision.
Where the employee is able to return to work, it is important that support is offered and that the return is actively managed to avoid a repeat of the absence and any claims.
Some employers have taken the view that prevention is better than cure and have taken steps to improve the health of their employees by regular monitoring of workload to reduce work place stress, supporting employees to give up smoking, encouraging them to exercise through work place clubs, ensuring access to healthy food and providing nutritional information to encourage healthy choices.
Such schemes will not eradicate long term absence but can be helpful in building loyalty and a positive working relationship, which is invaluable.
Debbie Sadler is a senior employment solicitor in Blake Lapthorn’s health and care team