Employment lawyer guide to employee absence management

From short-term sickness to long-term health conditions, employers face complex obligations under employment, discrimination and health and safety laws. Early intervention and proper procedures are essential to manage risk and support staff return to work.

Disciplinary action or dismissal for sickness absence

An employer can take action, including up to dismissal, but 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.