Ask us: How do I manage someone off on long term sick?

When an employee is absent from work due to long term sickness, the aim is to enable them to return to work, ideally to their substantive role as soon as possible.

Employers do not normally need to wait for company or statutory sick pay to expire, and indeed should be managing the absence as early as possible.

Long term sickness absence can be managed by:

1. Assessing the cause of the absence and putting in place any support or reasonable adjustments that will enable a return to work. In the first instance the assessment can be achieved through a conversation with the employee.  If adjustments to work/the workplace and support can be put in place, the employer has a duty to do this, and the matter can be quite simply resolved.

2. Sometimes it will be necessary to seek occupational health advice. Employers are not in a position to make judgements about an employee’s health and to be able to make full informed (and therefore fair) decisions, expert advice should be sought.  With the employee’s agreement, an employer could request a report from the employee’s GP however the GPs duty of care lies with their patient. An occupational health referral is often a more constructive route.  A response is generally quicker, and they have better insight into the work place and able to assess the employee against their role duties and    The employee could of course refuse, and if they do the employer can only make decisions on the information they have available.  To show they have been reasonable, notes of discussions about a referral and any refusal should be retained.

3. Occupational health will be able to advise:

• The nature of an employee’s illness/cause of absence
• Whether the condition falls under the employment definition of disability (a long term condition that has a substantial impact on an individual’s ability to carry out normal day to day activities). If it does, this places a duty on the employer to make reasonable adjustments
• How long they are likely to be affectedWhat workplace activities will make the condition worse
• What adjustments could be put in place to assist with the condition

4. An employer will then need to decide:

• How long it is reasonable for them to wait for an employee to be fit enough to return to work
• What adjustments to work or the workplace it is reasonable for them to make the decision making on these matters will be determined by the organisation size, resources, affordability and the nature of the work. 
• Ultimately it is about what is reasonable in the circumstances.

5. Before making any decisions about the employee, the employee should be consulted. The occupational health report should be discussed with the employee and any ideas they have on being able to return to work and support and adjustments that could be put in place should be explored.

6. If there is no prospect of a return to work within a reasonable time frame (and only a GP or occupational health report can advise that), an employer could consider dismissing the employee on capability grounds. Capability means the employee is unable to perform their role.  For this to be fair, there must be a fair procedure in which:

• expert (occupational health/GP) advice is sought
• the absence and expert advice is discussed with the employee
• interventions that could enable a return to work are explored
• alternative roles that could be performed are considered

Only when there is no alternative following these consultations, would a dismissal be fair.

7. To dismiss, there needs to be a fair dismissal procedure where:

a) The employee is formally invited to a meeting and given sufficient notice of the meeting, so they are able
to prepare. They are advised that they can be accompanied by a colleague or trade union official (or as
advised in the organisation policy) and notified that the meeting could end in dismissal
b) Any information that will be used in the meeting and to make a dismissal decision such as the occupational
health report is shared with the employee in advance
c) The meeting is held at an appropriate time and place. The meeting room should be sufficiently private to
allow for discussion of confidential matters
d) The meeting is a two-way discussion, with opportunity for the employee to state their case
e) If a decision to dismiss is made, this should be confirmed in writing and the right to appeal offered. The
employee would be due any sick pay accrued up to their last day of work, pay in lieu of notice and any
accrued holiday (including holiday which accrues during sickness) should also be paid up.

8. If there is any appeal, it is not necessarily a bad thing. If the employee feels their dismissal is unfair, it provides the employer with an opportunity to fix any wrongdoings in the process and decision making before things progress externally to legal proceedings.

I hope this helps provide an overview of the process.  The aim should always be about avoiding a dismissal wherever possible. 

Please do get in touch if you need more specific advice or support.