Absences due to ill-health (long term)

There is no legal definition of ‘long-term’ absence so it is up to the employer to decide at what point such absences need to be formally reviewed.

Often a trigger procedure that alerts you once an employee has been absent for an unbroken period is put in place, typically set at four, six or 13 weeks. In smaller organisations, the absence may have much more of an immediate impact, therefore many smaller employers regard anything in excess of four weeks as ‘long-term’.

Absence monitoring systems should also alert you once an employee has been absent to a set nuber of weeks and before the employee runs out of either contractual or statutory sick pay and, if appropriate, may become entitled to any Permanent Health Insurance. Decide on the stages at which you feel a review, medical report, follow up etc is necessary, and implement a system which automatically reminds you of these dates. Note that it is common to experience delays in getting GP reports (which, once received, vary hugely in the amount of detail provided and the amount of practical guidance given). You may wish to consider taking action earlier, so that any delay can be more easily accommodated.

The key is then to actively manage these cases, with the aim of getting the employee back to work as soon as possible, even if this is not at full capacity.

Getting specialist medical advice

The first step in managing long-term sickness is to get specialist advice.

GP reports:
Whilst the GP’s statement of fitness for work should provide basic details on any work that an employee may be able to do (if unfit to do their normal duties), the advice is unlikely to be very detailed. However, you may, with the employee’s permission, be able to write to the GP or consultant for further information. An employee may refuse permission for you to approach their GP, and any request to the GP or treating consultant has to comply with the Access to Medical Reports Act 1988. The employee can also choose to see the report before you do and to ask for changes to be made. Always bear in mind that GPs are treating the individual and will usually believe what they are told by their patient.

Occupational health reports:
These may be more objective, because the person preparing the report is not treating the employee, ie the employee is not their patient.  Occupational health specialists will independently advise both the individual and also the employer, and will focus on the nature of the work involved (not necessarily understood by GPs). They can offer guidance on reasonable and sustainable returns to work or on ill-health dismissal. Good occupational health specialists will actively assist in finding a solution rather than allowing a situation to fester. We recommend you find a reputable supplier to work with, build up a relationship and let them get to know your organisation and its expectations. Most absent employees appreciate this service too as it allows them to plan a way forward – being off work has many detrimental effects on them too.

The Access to Medical Reports Act 1988 does not apply to occupational health reports. Many contracts of employment include clauses that require the employee, if requested, to undergo a medical examination and failure to comply with this request could then be a breach of contract. (However even if you have such a clause, it is still usual to gain the employee’s permission, especially as the occupational health specialist may, in many cases, wish to consult with the GP or treating consultant.) Some contracts specifically stipulate that if an employee fails to report for an occupational health assessment that has been scheduled, contractual sick pay may be withheld.

Whichever route you follow, ensure that the individual is always informed/involved and knows that you are making positive efforts to understand the particular condition, how it presents itself for that individual and what this means in relation to their work. If the employee refuses permission for a medical report, you will have to make any decision on the basis of the information available to you at that time, so make this clear to the employee in advance. The fact that you have requested, and been refused, specialist advice will act in your favour.

You will be required to meet the cost of a GP or OH report. The amount and quality of advice can vary hugely, but if you ask specific questions and include more tailored information, you are likely to get a more helpful response. Phrase your questions in a supportive tone to keep the idea of returning to work live. Include a copy of the job description or outline the nature of the duties the employee is required to undertake, describe the working environment if there are relevant factors (you could even send a short video or photos of the workplace, showing someone doing the job and the physical requirements). Ask what work, if any, the employee may be able to do. It might be that the employee cannot return to their normal role but may be capable of undertaking restricted duties for a temporary period until fully recovered.

Ensure that the medical advisor is informed of what you may be able to consider in terms of changes to taks/working time etc – they can then advise accordingly and are more likely to make practical, specific suggestions which you can accommodate. You may find that you have to chase up the report as, whilst it may be a priority for you, it may not be to a GP or the surgery staff! Set yourself a weekly reminder to contact the surgery to ask for a progress report.

Communication

Good, open communication with absent employees is critical. In some cases (especially those which are stress-related) medical advisors suggest limited communication with work to allow the person to recover, free from interference or guilt, but for most, keeping in touch will help and may focus return to work plans. For employees on long-term absence, returning will be a daunting prospect; however if you keep them up to date with what’s going on, inform them of any important changes within the business and generally show concen as to how they’re getting on, it will help to reduce any feelings of hostility on the part of the employee and assist them when they do finally return to work. You can also ask the manager and colleagues to keep in touch.

Throughout the process, make it clear to the employee what will be happening, over what time-frame, and agree in advance how they would like to be communicated with. Ensure that this is regular enough to maintain the required levels of contact, but not so regular that it becomes overbearing or invasive. A monthly call will help you to keep in regular contact. At your first phone call, ask if it’s OK to call regularly and suggest they contact you if there are any questions in the meantime.

The employee may fear dismissal or, if they have exhausted sick pay, may feel relatively ‘safe’. Of course there may also be cases where you doubt the validity of the continued absence and these need managing even more closely.

The appropriate approach for each case must be carefully decided and discussed so expectations are clear.  There should be regular reviews and ongoing contact, with the employee being fully informed of your policies and procedures. Absentees can get mixed messages when sympathy turns to silence then to hounding. Aim to be fair and non-judgemental with a robust but consistent approach.

In most cases it’s best to meet with the employee periodically and, in many cases, a home visit is appropriate and welcomed by the employee, rather than having to attend the workplace. In such cases, do take someone along with you, and be prepared to find the employee’s spouse or partner sitting in on any meetings. If a home visit feels uncomfortable, consider using a suitable neutral alternative, such as a local hotel/meeting venue – this may be easier than the absentee attending their workplace (or yours, if not the same).

Proper consultation with the employee should include:

• consideration of the employee’s opinion on their condition
• consideration of how soon the employee’s health and attendance may improve and when a return to work is likely
• consideration of a phased return, or of possible alternative employment
• discussions with the employee regarding the possibility of seeking either further or independent medical opinion
• discussions with the employee as to the stage when dismissal may be the outcome.

Managing the sick pay situation

Ensure that your administrative systems give you early prior warning when someone is due to run out of sick pay. If your contractual sick pay scheme is very generous, the employee may not realise that they are coming to the end of this. Equally, SSP is paid for up to 28 weeks in total – a long time for those off work and a time-scale that is easy to forget. Bear in mind also ‘linked periods’ where SSP has been claimed in a previous absence: the employee may not be eligible for the full 28 weeks for the current period of absence.

It’s good practice to warn the employee  of any forthcoming reduction in pay (where employees are malingering, this warning can bring about a sudden improvement in health and return to work!)  If any statutory benefits may be available,  advise how to set about checking any entitlement to these and how to claim them.

We often find that payroll is not informed in time, and that employees are overpaid as a result. In such cases, treat any overpayment with caution; whilst you may well have a clause in your contracts which allows you to deduct full repayment from any amounts owing, and whilst you are entitled to recover any overpayment, a sympathetic approach is more likely to ensure a good relationship continues. A phased repayment may be more appropriate.

In cases where you don’t have a claw-back clause in the contract or your policies, exercise greater caution and remember that whilst you do have a right to recover an overpayment of wages, this has to be exercised reasonably and with the employee’s prior agreement.

Holiday whilst on long-term sick

Workers still accrue their full statutory annual holiday (5.6 weeks) whilst absent on long-term sick leave. They must be given the opportunity to take this, even where that person has exhausted their entitlement to sick pay and where the person does no work at all during the holiday year.

The following applies to employees on long-term sick leave:

• Ordinarily, at least the basic four weeks’ holiday entitlement under EU law must be taken within the leave year. However, if an employee has been unable to take this due to long-term illness, this should be carried forward to the next holiday year.
• Workers may request to take annual leave during a period of sickness absence and may wish to do so if they have exhausted their entitlement to sick pay. So a worker can choose to come off sick leave, take paid holiday and then return to sick leave. (Whilst some employers may find this irritating, it does have the benefit of preventing the employee from building up a lot of holiday carried forward into future years, so can be easier to manage.)
• If the worker does not elect to take their holiday entitlement during a leave year, if they have not had the opportunity to take the minimum four weeks’ statutory holiday, this should be carried forward. Payment cannot be made in lieu, unless the worker leaves your employment. The employer cannot insist on the worker taking the holiday instead of sick leave. For more details of carry forward and converting previously booked leave to sick pay, see our overview of the Working Time Regulations.
• Workers must give appropriate notice that they intend to take paid holiday leave, this applies to workers on long-term sick leave in the same way as to those who are at work unless the employer chooses to have different arrangements.
• On termination of employment only, the worker has the right to be paid for any accrued but untaken holiday entitlement.
• A worker who is denied the right to either take the leave, or to be paid in lieu on termination, can bring a claim under either the WTR or under the Employment Rights Act 1996 as a deduction from wages claim or, as is more likely to be the case if there is any uncertainty, both.
• You may wish to include in your future contracts a clause requiring employees to use accrued holiday during their notice period.

Disability

Be extra cautious of cases which may develop into a disability. This includes anxiety and stress, which can lead to depression.

There has been some debate on whether GPs and consultants should be asked to determine whether their patients are disabled. Case law states that it is not up to the GP or consultant to decide; the employer should decide, and an employment tribunal will then take its own view. We think that it is still worth asking the question, as someone with specialist medical skills is far more likely to have an informed opinion on whether a patient falls within the statutory definition, especially with regards to the expected duration of the condition.

For disabled employees, employers have an obligation to make reasonable adjustments or consider reasonable alternatives. Ultimately, fair dismissal is possible but all steps and procedures should be meticulously followed and recorded with dismissal being the absolute last resort.  If an adaptation proposed by either the employee or medical professional but the employer believes that it would be detrimental to the business and therefore not reasonable, they are not obliged to implement it.  The legal obligation extends to only those adaptations that are reasonable.

Fit notes

Fit notes can be very useful in helping you manage the sickness and it should be read carefully before taking any action.  Remember a fit note only comments on the employee’s fitness or otherwise for work in general and not necessarily about the individual tasks they undertake in their current role.  It may therefore be helpful to also obtain occupational health advice about their ability to return to work and carry out all of their duties, or adjust their duties for a period of time.  The fit note tells you whether they will need to return to see their doctor at the end of the fit note.  It also advises whether they are fit to return to light duties or over a phased period of time.  Remember the fit note is written as guidance to the employee as to whether or not they are capable of safely returning to work – if you have concerns about the fit note or believe that it would be risky for them to go back to their normal duties then consider carrying out a risk assessment and/or seeking occupational health guidance.

You should take a copy of any fit notes given to you for your records, but always return the original to the employee as they may need it for benefits or other purposes.

There is a useful guide for employers and line managers produced by the Department for Work & Pensions “Getting the most out of the fit note”.

Managing a return to work

Permanent health insurance

• ensure that your administrative systems prompt you to inform an employee shortly before becoming entitled to PHI of the details of how to claim
• check your contracts and your policy as many PHI policies only cover those who are still employees
• remember that such employees will still accrue statutory leave and will retain their continuity of service. This is important in any future dismissals. You also need to discuss with your provider how you may organise for the employee to take holiday without losing the ongoing benefit of the PHI and having to start the claim afresh.
• note also that employees on PHI should continue to receive any contractual benefits such as contractual holiday, a company car and life assurance (unless the contract contains a cut-off point).

Dismissal

• Invite the employee to a meeting with you to discuss the situation. Your invitation should be made in writing, giving the reasons for the meeting and the fact that you are considering bringing the employment to an end due to ill health. Allow the employee sufficient time to prepare for the meeting and to arrange for a companion to be present if desired. We would recommend that you offer the employee the opportunity to be accompanied by a colleague or a trade union representative if he/she wishes. You could give the employee the option of having a relative present: you’re under no obligation to do so, but it might help put your employee at ease in a difficult situation. In the case of ill-health, it may be advisable to offer to hold the meeting at the employee’s home, or a local neutral venue, if the person is unable to travel. Note that a capability dismissal will normally be unfair if the employer fails to take reasonable steps to find out whether the employee is entitled to ill-health retirement benefits and therefore unreasonably deprives the employee of these, so do investigate this prior to making a decision.
• At the meeting, discuss the reasons for the potential dismissal and the options you have explored to try to avoid this. Allow the employee to have his/her say before making a decision.
• You might want to provide some details on who to contact regarding any benefits the employee may be entitled to or details on early retirement (see below). This gives the meeting a more supportive stance, making it less formal.
• If the employee is capable of doing some work it is important that you offer alternative work if it is available. You may have to consider making minor modifications to the job and/or the workplace environment in order to facilitate the return to work (eg a change of shifts). However you do not have to create a vacancy. If considering other vacancies, give priority to such employees over other candidates, provided that they have the required skill set for the role.
• It may be an option for the employee to take early retirement on ill-health grounds. Such action normally requires a doctor’s recommendation that the employee is permanently incapacitated and unable to undertake any full-time employment.
• Consider the effect of the absence on your business, how similar situations have been handled in the past and whether the illness is a result of any disability.
• If you decide to dismiss an employee on the grounds of ill-health or absenteeism, write to confirm the decision and explain why he/she is dismissed.
• Specific rules apply to payments during notice for employees who are dismissed on grounds of ill-health. If the employee is unable to work out the notice period due to sickness:
  • if his/her contractual notice period is the minimum statutory notice only, full pay must be paid for the notice period
  • if he/she has contractual notice period which is at least a week longer than the statutory minimum, the appropriate absence payments should be made as normal (ie there is no difference during the notice period). If sick pay is exhausted, the notice period would be unpaid.
• If you have consulted fully with the employee, you may feel that giving the opportunity to appeal would be meaningless.

Conclusion

• Review each case on an individual basis and ensure you keep in regular contact with the employee.
• Plan with the employee how and when to take his/her holiday entitlement.
• Consider a phased return to work if this is practical.
• Ensure that such employees are carefully managed, and not forgotten about. Be able to show that you have done everything you can.
• Always aim to get a medical report prior to making a decision to dismiss and consider whether you have any suitable alternative employment which can be offered (but you don’t have to create a new role).
• Remember that such workers will be entitled to notice on full pay if they are only entitled to statutory notice (or less than one week more than this).
• Check the wording of any insurance schemes so that you are clear as to what the situation is regarding dismissal and also how the taking of paid holiday may affect benefits under the policy.
• If you offer generous contractual holiday, consider whether to introduce a clause in contracts of employment which prevents annual leave over and above the statutory minimum from accruing during periods of long-term sick leave.

Legal considerations

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If you are unsure how to support your employees with their mental health, or would like to discuss our HR, Payroll, or Health and Safety services, please contact us and speak to a member of the team.