Managing long term absence in the workplace is one of the most difficult issues for employers to deal with; this article provides a useful guide to your legal obligations as an employer and the correct procedures to follow.
Days lost to sickness have fallen markedly in the last twenty years with a decline of more than a quarter over the period, according to the Office for National Statistics.
It would be good to think that this is purely because the UK is now a much fitter and healthier nation. But in reality, much of this can be put down to improved strategies in dealing with absenteeism in the workplace and a much better understanding of the main issues and causes by employers.
Absence in the workplace can have serious effects on costs and productivity and it is really important that organisations have proper absence management procedures in place. Employers are generally now better equipped to deal with absence and improved monitoring means that it is easier to identify patterns of absence and their possible causes. This has also given employers a better insight into problems that might be common within particular types of work or industries. For example, there might be increased absence levels where there are high levels of overtime or frequently rotating shifts. It can also be more common in larger organisations where individuals feel less likely to be missed. By contrast during times of economic uncertainty, people are much less likely to take sickness leave because of worries about their job security.
There is now a wider recognition that absenteeism can be caused by issues in the workplace and a good absence management procedure will uncover the cause of persistent absences and enable the employer to make necessary improvements. These could include changes to job design, improving the quality of working relationships and the introduction of flexible working arrangements.
MANAGING LONG TERM ABSENCE
Despite these improvements however, handling the long term absence of an employee is a delicate matter. Indeed it is probably one of the most difficult situations an employer has to handle in the workplace.
The illness concerned may be serious and might require an operation and recovery time or it could be a mental health illness. It goes without saying that all of these illnesses require a sympathetic and understanding approach from the employer. However it might be the case that you suspect that the illness is being drawn out to delay a return to work by your employee.
Whilst both of these situations are totally different, both can cause a major disruption to the productivity of your business and add considerably to the workload of other employees. How you manage both situations can be fairly similar but do remember that they are both completely different and require the employer to act with sensitivity but in very different ways.
In both situations you should:
When absence is confirmed to be due to a medically certificated illness or disability, the issue becomes one of capability rather than conduct. Employers then need to take a sympathetic and considerate approach, particularly if the employee is disabled and where reasonable adjustments at the workplace might enable them to return to work.
HOW CAN I HELP AN EMPLOYEE RETURN TO WORK AFTER A LONG ABSENCE?
Employees are often understandably anxious about returning to work after a long absence and they may have questions to ask you such as:
Has my working environment changed? If the sickness was work related they may be concerned about using the equipment and if that is the case have you reviewed your risk assessment?
Could you make reasonable adjustments for me? If they are disabled, or have become disabled, you are required to make reasonable adjustments to help them back to work
What do my colleagues know about my absence? You need to reassure the employee that all discussions and paperwork about their illness have remained strictly confidential and ask the employee how they wish to handle the subject of their absence with colleagues or in team meetings.
GETTING BACK TO WORK
Employees also need to be reassured that you have given some thought to their return to work and you need to talk to the employee about a ‘getting back to work’ programme. This might involve:
WHAT IF IT APPEARS THAT THE EMPLOYEE IS UNLIKELY TO BE ABLE TO RETURN TO WORK:
In the case of a long term absence where advice about a possible return to work is needed or even more importantly if the employee’s job can no longer be held open and if no suitable alternative work is available, it is always advisable to seek medical information, either from the employee’s own doctor or from a company doctor. If you wish to contact the employee’s doctor, you must notify the employee in writing that you intend to make an application and you must secure the employee’s consent in writing. If you have a company doctor the employee should be asked if they would agree to be examined by that doctor. If an employee refuses to cooperate in providing medical evidence, or to undergo an independent medical examination, the employee should be told in writing that a decision will be taken on the basis of the information available and that it could result in dismissal.
The doctor should be given clear information about the employee’s duties and invited to comment on their ability to carry out those duties, the timescale for their likely recovery to a point where they would be able to carry out those duties, their ability to carry out any lighter or alternative duties if it is open to the employer to provide such alternatives and any reasonable adjustments which would allow them to return to work in their own role or in an adjusted role.
Having obtained the medical advice the employee should be invited to a meeting to discuss the absence in light of the medical advice. If alternative duties or reasonable adjustments are an option these should be fully explored with the employee who must be given the opportunity to provide their own input on the doctor’s view. It is hoped that in most cases the absence can be brought to an end by working with the employee in light of the medical advice.
If the medical advice suggests that the employee is considered unable to return to work within a reasonable period of time the employee should be invited to a meeting to discuss possible termination of his contract on the grounds of incapacity. He should be given notice of the meeting, copies of the medical information which the employer has obtained and indeed any other relevant information. This should be given to him in advance of the meeting in order that he can properly prepare for the meeting. At that meeting due consideration must be given to any points made by the employee and if necessary the employee’s view should be further canvassed with the doctor. If after following this procedure it is still unlikely that the employee will be able to return to work within a reasonable period the employee should be dismissed with notice. The dismissal should be confirmed in writing and the employee should be advised of his right to appeal that decision in accordance with the company’s disciplinary procedure.
An employer who approaches this procedure with an open mind and takes thorough advice from a doctor is unlikely to be found to have unfairly dismissed an employee in such circumstances. Any attempt to push through the procedure too quickly or to substitute medical advice with the employer’s own view of what common sense tells him can lead to a finding of unfair dismissal which can prove much more costly , both in time and money, that taking the time to follow the procedure cautiously but thoroughly. The law and the tribunal system recognises that sometimes an employee simply cannot return to work and in those circumstances it is necessary to terminate his contract provided this fair procedure is followed.
There are clearly established procedures which must be applied when managing the delicate subject of long term sickness in the workplace. If you need specialist help and advice in managing a case of long term absence please don’t hesitate to get in touch with us.