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6 common long-term sick leave frustrations – and why you can’t just dismiss
Written by Susie Lockheart on 22 March 2023
The longer sickness absence drags on, the greater the cost to organisations. As such, employers are often keen to take swift and decisive action in cases where the prospect of the employee returning to work any time soon is slim.
Employers’ desire to take urgent action in these circumstances is understandable. Long-term sickness absence – generally understood to be absence of four weeks or more – means paying for sick leave and, in some cases, hiring temporary staff to cover the absent employee’s workload.
To make matters worse, it’s often difficult to predict when the employee will be able to return, prolonging uncertainty and making it difficult to plan ahead. All the while, co-workers may need to take on extra work to cover the absent employee’s duties, and morale may suffer if there is a perceived lack of support or communication from management.
You need a way forward.
But while you may be keen to make haste, it’s not a simple as dismissing the employee. This can be a source of irritation for employers; however, dismissing an employee on long-term sick can leave your business exposed to the risk of Tribunal claims. As such, it should always be a last-resort option, after all reasonable attempts to support the employee’s return to work have been exhausted.
Speaking to employers every day, this blog discusses six common frustrations when dealing with employees on long-term sick, how to move things forward, and the legal reasons why you can’t just rush to dismiss.
1. The employee is working elsewhere while signed off
Here, it’s easy to jump to the conclusion that the employee is malingering. After all, if they are well enough to work elsewhere, what’s stopping them returning to work for you?
In reality, however, there are situations where this may be entirely valid given the nature of the employee’s role and illness, for example if one role is a physical role while the other is office-based. In fact, from a legal point of view, an employee can be considered medically unfit for work under one contract, while still capable of work under another.
Employers must therefore be wary of dismissing an employee for misconduct in this scenario, as provided the contracts are not with the same employer or two associated employers, they are within their rights to claim statutory sick pay even if they are still working elsewhere.
That said, if the employee isn’t actually medically unfit in regard to their employment with you and/or they work their second job during the hours that they would have otherwise been working for you, you will be able to instigate your disciplinary procedure.
2. The employee has failed to follow absence reporting procedures
Employees failing to follow your absence reporting procedure is a common frustration and can create several issues; it can disrupt the workflow of the team, make it difficult to plan for staffing needs, and is likely to cost you more than if you had been able to plan for the absence in advance.
However, employers must be cautious: if an employee is disciplined and dismissed for not following your absence reporting procedure, and they are able to link the reason for their dismissal to a mental health condition (for example, if their condition meant that they could not call in or submit fit notes) then they could have grounds to bring a claim for indirect disability discrimination.
Each case will turn very much in their own facts and will require investigation when the employee does return to work to establish the cause of the unauthorised absence and whether or not a disciplinary process is merited.
If you have reason to believe that the employee has mental health problems, consider arranging an Occupational Health appointment to establish if they are able to follow the absence reporting process.
3. The employee is unable or unwilling to attend meetings (or ghosting communications)
You may have been advised by a medical professional that the employee is not able to attend meetings to discuss the absence and move the process forward. This can feel like a significant blocker to proceedings and it’s important to establish why this is the case.
If the employee is covered by the Equality Act, reasonable adjustments should be considered. For example, can the meetings be conducted by way of correspondence or held offsite?
It may be that the employee, although covered by a fit note, is simply ignoring your attempts to make contact. In this case, try to establish why they don’t wish to engage and perhaps see if they would communicate through a third party such as a family member.
Contact with an employee who is legitimately absent should be appropriate in the circumstances. However, if they are not engaging and are not covered by a fit note, then a disciplinary process can be undertaken. Unless the employee has less than two years’ service and no protected characteristics, you would need to undergo a full disciplinary process, which would likely result in a written warning the first time, followed by a ‘totting up’ dismissal if the conduct continued.
4. The employee is refusing to attend Occupational Health
When dealing with employees on long-term sick, getting medical evidence can be critical. A medical report from the employee’s GP or an Occupational Health professional will help you to better understand the employee’s condition, the impact it has on their work, and any measures that should be taken to facilitate their return.
If the employee refuses to engage with a medical professional, then as an employer, there are difficult decisions to be made as to whether to proceed on the evidence that is available. You could encourage the employee to attend by sending chaser letters (if they have not replied to the consent forms) and explaining what the process entails, reiterating that you will not have had the benefit of sight of their medical records.
5. The employee can only carry out part of their role
Employers will have to consider at what stage the duty to make reasonable adjustments is triggered and demonstrate that they have taken all appropriate steps to facilitate a return to work, including looking at alternative duties, hours and alternative roles where possible. However, the key here is the word ‘reasonable’; employees do not have carte blanche to dictate what they require.
According to Acas guidance, what’s reasonable will depend on the situation. The employer must consider carefully if the adjustment:
- Will remove or reduce the disadvantage – the employer should talk with the person and not make assumptions;
- Is practical to make;
- Is affordable; and/or
- Could harm the health and safety of others.
If you have an employee who can only fulfil part of that role, you will need to consider whether it would be reasonable for them to move to a different role, work part time, and also the impact on colleagues who may have to pick up additional work.
If it is not reasonable and you are not able to continue with their employment on a part-time basis, or if for other reasons it would not be possible to accommodate adjustments, then you can proceed with a capability process.
6. The process is dragging on!
From arranging Occupational Health appointments to chasing for sick notes and holding welfare meetings, managing long-term sickness absence can be a laborious and time-consuming process.
Good paperwork, policies and staying in touch with the employee will help to ensure it is efficient as possible and get the employee back to work sooner; however, if it’s not possible to do so, then obtaining a medical report which states that the employee isn’t going to be able to return to work in the foreseeable future can trigger a process leading to a capability dismissal.
While frustrating, it is worth ensuring that a fair process is followed, as in addition to a potential claim for unfair dismissal there may also be an uncapped claim for disability discrimination.
Specialist support through long-term sickness absence
As you can see from these various scenarios, it is possible to find a way to manage a frustrating long-term absence situations. However, each case will be very fact-specific, which in turn will impact the advice and the legal route that may be followed to reach your desired outcome.
WorkNest’s Employment Law and HR experts can assist you at each stage of the process, offering effective advice while mitigating against the risk of a Tribunal claim. Get in touch with our team today on 0345 226 8393 or request your free consultation using the button below.
