Employers faced with staff on long-term sick leave, or staff who suffer frequent shorter periods of absence as a result of illness, are often in a difficult position.
As the laws relating to sick leave and discrimination have become more comprehensive, understanding your rights as an employer has never been more important.
Assess the position
As an employer, you need to be able to rely on your staff being fit enough to carry out their responsibilities. While long-term sickness requires sympathy and understanding, it is important to maintain a commercial perspective. The first step is for you to assess your employee’s health problems:
- Have a sickness policy in place that allows you to be involved in dealing with your employee’s illness
- Implementing return interviews for employees who have been off sick. This can help identify and address any ongoing problems.
- Assess whether any underlying cause of frequent absence may be as a result of a disability.
If there is any possibility that your employee may be disabled, you will need to consider your obligations under the Disability Discrimination Act 1995.
Suffering From Anti-Work-itis?
If you come to the conclusion that your employee is malingering, you may need to investigate further to assess the reason why.
It may be that your employee is being seriously bullied or intimidated or that there is some psychological complaint or stress affecting your employee’s performance.
Investigations need to be sensitively and supportively handled and if there is any suggestion your employee is being bullied, you have basic duties that you need to follow to protect yourself from a potential claim:
- A duty to take reasonable steps to ensure the safety and security of your workers
- A duty to prevent discrimination on any of the prohibited grounds
- Vicarious liability for the actions of your employees including actions that may amount to harassment under the Protection From Harassment Act 1997.
If the employee is in danger of developing a psychiatric condition (such as depression), 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 facing a very substantial 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
The general advice in dealing with sickness absence is to treat it as a capability rather than a conduct issue.
An employee’s inability to perform the job he or she is paid to do is a potentially fair reason for dismissal.
If you were considering dismissal, you would need to follow a fair procedure as well and the decision to dismiss should be one that a reasonable employer would take in all the circumstances.
Recent case law confirms that it is still possible to dismiss fairly on the basis of capability even when the employee’s illness has been caused by you as long as you show that you had done everything possible to assist the employee to return to work.
Getting It Wrong
There are several possible consequences of getting this process wrong.
The good news, according to a recent case, is that the employees’ compensatory award in respect of salary during the notice period may be reduced if the employee would have been off 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.
This does not 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.
- No-one expects you to be a charity and maintain employees who cannot or will not do their job. However, there is an obligation on you to ensure you behave fairly and reasonably and do not discriminate.
- Preliminary investigation and an accessible support network are important tools as employers should ensure they know all the facts before considering dismissal.
- Employers should ensure they take legal advice on their options at the earliest sign of a problem.