It’s generally accepted that employees on long-term sick leave aren’t too good for business. While long-term sickness does require sympathy and understanding, it’s important to maintain a practical and commercial perspective.
The first step is to assess your employee’s health problems. Ensure that a company sickness policy is in place which allows you to be involved in dealing with your employee’s illness. Implementing return interviews for employees who have been off sick can help both parties to identify and address any ongoing problems.
From an employer’s perspective, it’s also helpful to assess whether any underlying cause of frequent absence may be the result of a disability. If there’s any possibility that your employee may be disabled, you’ll need to consider your obligations under the terms of the Disability Discrimination Act 1995.
Suffering ‘anti-work’-itis?
If you come to the conclusion that your employee is malingering, you may need to investigate further to assess the reason(s) why. It may be that your employee is being seriously bullied or intimidated, or that there’s some psychological complaint or stress affecting their performance. Investigations must always be sensitively and supportively handled.
If there’s any suggestion that your employee is being bullied for any reason, you need to protect yourself from a potential claim. In practice, your basic duties will include:
A breach of any one of these duties could potentially give rise to a claim against you. If the employee in question is in danger of developing a psychiatric condition (depression, for example) which may affect their ability to work for a prolonged period as a result of a continuing failure to address the situation, you could be faced with a hefty claim for damages.
Of course, if your employee is simply lazy and wants to be paid for ‘Duvet Days’ this is less likely to be an issue, and you can move on to the next step in the process.
Dealing with sickness absence
Treat sickness absence as a capability-related rather than conduct-related issue. An employee’s inability to perform the job he or she is paid to do is a potentially fair reason for dismissal. If considering dismissal, you must follow a fair procedure as well. The decision to dismiss should be one which a reasonable employer would take in all circumstances.
Recent case law confirms that it’s still possible to dismiss fairly on the basis of capability even when the employee’s illness has been caused by you – where, for example, bullying in the workplace has led to psychiatric injury to your employee. In these circumstances, though, you would have to show that you had done everything possible to assist the employee to return to work.
Consequences of failure
There are several possible consequences of getting this process wrong, ranging from failure to spot a problem leading to a claim for discrimination or a claim under the Protection from Harassment Act (which could be bad) to dismissing a newly-employed member of staff and facing a minor claim for breach of contract.
According to a recent case in the Courts, the good news is that the employee’s compensatory award in respect of salary during the notice period may be reduced if he or she would have been off work sick for the notice period. In these circumstances, the employee may only be entitled to statutory or contractual sick pay as applicable instead of their full salary for the notice period.
However, this doesn’t mean that you should decide to dismiss an employee on long-term sick leave on the basis that their award may not be very high. It’s wise for employers to seek detailed legal advice on their options at the earliest sign there may be a problem.
