• In this article we share some top tips and practical guidance for employers on managing long-term absence.

    COVID-19

    From 24 March 2022, the temporary statutory sick pay (SSP) rules that were put in place during the coronavirus pandemic have been removed. This follows the legal requirement to self-isolate in England ending on 24 February 2022. Workers are therefore no longer entitled to SSP for self-isolation unless they are actually not well and are off sick. SSP is also no longer available from day one.

    Companies should exercise caution if, in regards to company sick pay, they now treat those who have been fully vaccinated more favourably than those who have not been.

    Depending on the circumstances, from a legal perspective, this may risk potential claims for breach of contract, breach of mutual trust and confidence as well as discrimination and human rights arguments.

    Mental health

    The World Health Organization recently reported that in the first year of the COVID-19 pandemic, global prevalence of anxiety and depression increased by a massive 25%.

    With mental ill health becoming increasingly prevalent as a cause of long-term sickness, in order to effectively manage your employees’ mental health in the workplace, we recommend that:

    • Employers should ensure they promote open discussions regarding mental health
    • Managers have regular training on how to have non-discriminatory conversations about mental health issues
    • Managers understand how and when to signpost support

    Steps you should take if an employee is absent due to long-term sickness

    We advise that consultation is key in cases of long-term sickness and central to the fairness of any dismissal.

    Human resources or line managers should establish contact early on and agree on how contact will work moving forward, making clear that they remain an employee and the necessity for reasonable contact.

    You should also always review your procedures before taking any formal action and let the initial investigation guide next steps. It is important to keep a paper trail of all contact and attempted contact to demonstrate the steps taken.

    Our top tips for managing consultations include:

    • Make sure conversations are two-way.
    • Keep up to date with the individual’s medical position and obtain appropriate medical advice which is then discussed with that person.
    • Make sure that the person is allowed to be accompanied at any formal meeting where disciplinary action may be taken. Depending on the circumstances, it may be appropriate to allow them  to be accompanied at any formal meeting.
    • Where possible allow for face-to-face meetings (this can be at the employee’s home if agreed).
    • If the person is not cooperating, try to find the root cause of this and consider getting a medical opinion on their ability to attend if necessary.
    • If they fail to attend meetings or agree to visit occupational health, there is the potential to hold any meeting in their absence using the information available. This should only be done if the person has been notified and if attempts to reschedule the meeting have been futile. It should only be used  as a last resort and once other options have been offered, such as the option to provide written submissions.

    Reasonable adjustments

    Where a worker has a disability under the Equality Act 2010 an employer may be required to make reasonable adjustments regarding both  the actual management of the sickness absence process and a return to work.

    What is reasonable comes down to many individual factors. These include, but are not limited to:

    • How much does it remove the disadvantage?
    • Was it practical?
    • What is the cost of the adjustment? (both financial and resources)
    • Does it disrupt your activity and if so, to what extent?
    • Is there any external assistance available?

    Medical evidence

    The onus is on you as the employer to ascertain the medical position. If there is an on-going process then situations may change and you may need to obtain new medical evidence. Always ensure that medical evidence is up to date and current.

    If conflicting information is received, you must take steps to obtain further clarification or reports. In certain circumstances, however, you may be entitled to favour the opinion of one expert.

    Two important things to remember are:

    • Under the Access to Medical Reports Act 1988, an employee may withhold consent to access a report, but it would not usually be in their interests to do so.
    • Carefully consider a list of questions to any occupational health provider. Usually the more tailored the questions, the more helpful the information given is.

    What to do when a return to work is not possible

    If it is not possible for an employee to return to work, you must establish a fair reason for dismissal, and ensure fair procedure is followed.

    Where appropriate, consideration should be given to ill-health retirement. Any provision under any permanent ill-health insurance should also be considered.

    Failing to establish a fair reason or follow a fair process may put the company at risk of an unfair or wrongful dismissal claim or a disability discrimination claim and awards of compensation (potentially unlimited for a discrimination claim).

    How can we help?

    Our Employment team can offer support and guidance on how to manage employees on long-term absence.

    If you would like more information on how we can support you handling issues and minimise the risk of successful claims, please book a free 30-minute online appointment with a member of our Employment team today, for an initial discussion of your needs.

    This content is correct at time of publication

    Can we help?

    Take a look at our Employment & HR page for useful information, resources, guidance, details of our team and how we may be able to help you

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