Managing Long-Term Sickness

by Joanne Stronach

Long-term sickness absence represents just 5% of all absences but accounts for 33% of lost working days at a cost of over £3.8 billion a year. It is a serious problem faced by both large and small organisations.  Employers have to tackle issues such as conflicting or inconclusive medical evidence and disputed facts. 

Managing long-term sickness can be confusing and frustrating for both the employer and employee, however for the employer there is the added risk of liability for unfair dismissal and disability discrimination.

There are a number of actions employers can take in order to keep better control over long-term sickness absence and avoid tribunal proceedings:

1. Write it down – Keep a written record of all material events during the period of absence.  Make a detailed attendance note of all telephone calls and meetings concerning the employee.  In the event of proceedings being issued by the employee, an accurate file documenting positive steps taken by the employer during the absence will assist to protect the employer, especially when it comes to the duty of making reasonable adjustments for disability discrimination claims.

2. Keep in touch – Diarise regular times to telephone the employee to check his or her progress.  If medical advisers indicate that this is inappropriate, it may be possible to contact a relative.   A note of the number called and any conversation or messages left should be kept.  But beware, ringing too often can be seen as harassment especially if the employee is suffering from an anxiety illness.

3. Certificates – Ensure medical certificates are supplied regularly to cover the whole period.  Contracts may provide that any contractual sick pay is dependent on receipt of certificates.  Keep a note of the dates of receipt (and the diagnosis) of medical certificates.

4. Expert Opinion – It is necessary to establish the medical position at an early stage.  Ensure the employee sees the company doctor or an appropriate specialist at regular intervals.  An employer must first obtain the employee’s consent to an examination.

 Setting this as a requirement in the contract of employment can help persuade a reluctant employee if they risk being in breach of contract by refusing.

 The employer should ask the doctor:

- The nature of the employee’s illness and whether it is a disability as defined in the Disability Discrimination Act 1995

- The impact on his or her ability to do the job

- Likely length of the illness

- Whether the condition is work related

- Whether there are any adjustments that could enable the employee to return to work.

It may be necessary to assist the employee with travel arrangements or to arrange a home visit.

If you have conflicting medical opinions, from the company doctor and the employee’s GP, it is advisable to get the doctors to discuss their views to try to reach agreement.

If possible, arrange meetings between the employer and the employee to review progress and to discuss a “return to work” plan.  Meetings could take place at the employee’s home or at a neutral location if the employee is unable or unwilling to travel to the workplace.  Explain why a meeting is important should the employee be reluctant to attend.

5. Reasonable Adjustments – An employer is under a duty to consider reasonable adjustments under the Disability Discrimination Act 1995 where an employee has a long-term condition that may last twelve months or more and affects the employee’s ability to undertake normal day-to-day activities.

 The employee should be asked to suggest adjustments, however the employer must also consider what adjustments can be made and whether they are reasonable as the duty to do so is on the employer.  This consideration process should be documented.

6. In House Communication - “Singing from the same hymn sheet” – Both HR and the relevant line managers must co-ordinate their approach with regard to the employee’s absence.  Subject to confidentiality considerations set out in the Information Commissioner’s Code of Practice (stating that managers should only be provided with the information about their staff that is necessary to carry out their managerial roles) try to ensure that both the relevant manager and HR have access to the same information about the absence.  It will be difficult for the manager to fulfil the obligations of the Disability Discrimination Act without an understanding of the employee’s condition.

 Colleagues should also be briefed on how to respond to external questions e.g. from customers – regarding the employees absence and not to say that the employee has left.

7. STRESSED OUT? – Look out for any suggestion that the underlying cause of the employee’s condition is stress, whether work related or not, or that stress has exacerbated an existing condition.  If so, this should be discussed with the employee.  Stress in itself can now be a disability.

 Investigate the possible causes and consider any adjustments to address the alleged stress.

8. Beyond Return – Ultimately the employer is still able to dismiss the employee on the grounds of capability or some other substantial reason but this has to be the last resort after proper medical investigation, consideration of redeployment and reasonable adjustments, if appropriate and all the steps outlined above have been exhausted. 

In the event of an unfair dismissal claim the employer must show that the reason for the dismissal was genuine.  As any dismissal is also now covered by the statutory disciplinary and dismissal procedure the employer must make sure that he/she also complies with that to avoid an automatically unfair dismissal.

As this area is so easy to get wrong and has costly impact on management time, overtime, temporary staff costs and unlimited compensation, Burnetts have joined forces with Weightman Associates to present a series of seminars including a seminar on Managing Stress and Back Pain to Reduce Absence and Long Term Sickness. This full day course starts at 9am on 10th May 2006 and takes place at Carlisle Racecourse.

For more information on Burnetts seminars or other employment matters please contact Joanne Stronach on 01228 552222. Joanne Stronach is a Partner at Burnetts Solicitors who specialises in employment law.

Apr 2006