Employee Absence Legal Advice

By way of an immediate quick summary of some of the most important tips for employers :-

Do :-

• Have a clear sickness absence policy and stick to it.

• Be consistent in your approach, checking how you have approached other staff absences.

• Adopt a balanced approach but be aware that long term absence can constitute a disciplinary matter and dismissal may ultimately be entirely fair and reasonable.

• Be aware of the employee's statutory right to sick pay.

• Document the business impact of the employee’s absence - create a written record of the impact the employee’s continued absence is having on your business both financially, and with regards to other members of staff. For example, you might now have to pay for additional resource or there is insufficient absence cover.

Don’t

• Harangue the employee

• Push too hard if the employee refuses a medical examination or to provide medical information – instead, consider appropriate actions to find out what the employee’s reasons are and offer alternative solutions, such as redacting portions of the report related to prior illnesses. It's important to review the employee's employment contract as well, as it may explicitly grant the employer the authority to request a medical examination, and refusal could constitute a breach of contract or potentially even misconduct. Similar provisions may also be found in sickness policies.

• Overlook the importance of procedure

• Assume the risks are low if the employee has not been employed by you for 2 years or more. A potentially bigger risk is a claim for discrimination, which requires no minimum period of employment.

• Forget the importance of record-keeping of sickness-related absence and communications,

• Try to compel an employee to return to work before they are fully recovered, failing to identify and address trends or patterns in absence among the workforce.

Does the employee have a disability?

It is crucial to evaluate whether the employee is suffering from a disability. In English employment law, a disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.

If an employee's disability results in extended periods of work absence and the employer terminates their employment due to this absence, such termination will be considered discrimination arising from disability, unless there is a valid objective justification. The employer is also required to actively consider and where possible implement reasonable adjustments which might in some cases enable some form of return to work for the employee.

Can employers discipline or dismiss for sickness absence?

Yes, but the employer must comply with it's own employment contracts and policies and ensure fair process is followed. The process is often more important than the fairness of the decision to terminate employment.

Issues that can be problematic can include :-

• When an employee consistently declines to give consent for a medical examination or to share the examination report with the employee. A decision to terminate employment based on the existing evidence might still be considered a reasonable course of action.

• Medical requests by the employer should exclusively pertain to the employee's job-related capabilities.

• Prior to seeking a medical report, it is essential to obtain written authorisation, and any refusal should be investigated for its underlying reasons. Furthermore, employees must receive the necessary information in accordance with the Access to Medical Reports Act 1988 and be informed of their right to decline consent.

SSP - Does SSP stop after 28 weeks?

Yes, SSP is generally payable for a maximum period of 28 weeks. If an employee has been absent due to illness or incapacity for 28 continuous weeks, their entitlement to SSP will cease at the end of that period.

Importance of phased return to work

Failing to accommodate an employee's health condition or disability by not allowing a phased return to work leaves employers at risk of being found to have failed to make reasonable adjustments if the employee has a disability.

In the event of a dispute or legal challenge related to an employee's return to work, having a documented and fair phased return plan can be essential for an employer's legal defence. It can show that the employer acted reasonably and in compliance with the law

Dismissal based on continued short term absences

In the sense that the cumulative impact of significant absences results in disruption cumulative and ongoing regular sickness absences can be treated in a similar way to a single long absence. Ultimately, it depends on your own policies and procedures and ensuring these are clear, communicated and consistently applied.

Where there is a pattern of lots of short employee absences, employers have the flexibility to establish their own rules and criteria for what constitutes an ongoing issue which triggers steps under employment policies and possibility disciplinary action for capability. A starting point for consideration might be the national average of sick days per year in the UK, which typically ranges from 6 to 7 days, or industry-specific averages. If your business maintains records of sick leave data, the average per employee might be a useful benchmark for your business policies about absences.

Employee off work due to mental health issues

Mental health issues are a growing issue in society, especially after the pandemic. Employers should take care to recognise that mental health issues can constitute a disability. Examples of conditions which have been classified as disabilities for employment law purposes include :-

• Depression

• Anxiety disorders

• Post-Traumatic Stress Disorder (PTSD)

• Obsessive-Compulsive Disorder (OCD)

• Learning disabilities

• Autism and related conditions

• Eating disorders

• ADHD

Complicated situations where employees are signed off for stress

Employers need to be extremely wary of dealing with situations where an employee gets signed off from work due to stress, especially if the stress may have been caused by workplace conflict or some form of harassment. Another quite common and very tricky situation is where an employee is absent whilst a grievance is ongoing, either lodged by the employee or by another employee making allegations against him or her. We recommend that in these situations, experienced legal advice is sought.

Mutual termination of employment during long term absence – the settlement agreement

An option which often appears (and sometimes is) preferable for an employer dealing with a difficult issue of long term employee absence is to potentially offer the employee a settlement agreement, with an enhanced package, to mutually terminate employment.

Whilst the use of settlement agreements is very common, some caution is important where the underlying situation is long term absence and potential or actual disability of the employee.

Offering a termination payment openly is very dangerous for an employer. The usual approach is to start a “without prejudice” (which is a conversation which in usual circumstances cannot be used as evidence) discussion with the employee or a protected conversation.

There are potential complications and risks in both the above with an employee on long term sickness absence. Timing is important, as is a careful and considered approach, usually best handled by experienced employment lawyers.