Long Term Sickness

Dealing with an employee who is off sick for a number of long periods, or for one continuous long period, is complex. It requires a particularly careful procedure, which must be well documented by the employer.

Particular care will be required to ensure you do not encounter disability discrimination claims if the employee has a long-term condition meeting the definition of disability under the Equality Act 2010.

The existence of a permanent health insurance (PHI) scheme or a pension scheme providing for ill-health retirement, will also need to be considered.

When an employee has been signed off sick an employer should:

1. Consult with the employee in order to obtain a diagnosis and a prognosis to ascertain how long the absence is likely to last,

2. Obtain medical evidence, if required, to clarify the employee’s condition and likely return to work,

A medical report can be obtained from either the employees GP or an employer’s own company medical expert. The employee will have to give consent under GDPR and AMRA regulations and a procedure will have to be followed to obtain such consent. The employee will be entitled to consider the report,

3. Obtain an occupational health assessment to see what adjustments could be made to facilitate the employees return to work,

4. Consider disability issues, if the employee is disabled for the purposes of the Equality Act then the employer has a duty to make reasonable adjustments to facilitate the employees return to work. This does not mean making all the adjustments recommended by the employee, the occupational health report or the doctors, just those which are reasonable with reference to the resources of the employer and the likely effect the adjustment will make,

5. Consider any available alternative employment,

6. Consider early retirement under a pension scheme (if there is one),

7. Consider the permanent health insurance (PHI) scheme (if there is one) – an employer cannot dismiss the employee this means they lose their entitlement to benefit under a PHI scheme unless there is a good reason to do so for example a genuine redundancy situation or a finding of misconduct on the part of the employee,

8. Consider dismissing the employee if they are incapable of performing the job and reasonable adjustments would not change this fact and there are no alternative positions available. Ultimately employers are entitled to some finality.

Assistance

In order to assist employers in managing these issues we have created the EmployRight scheme. The scheme provides an employer with:

• The statutory Statement of Terms of Employment for all their employees,
• A disciplinary procedure,
• A grievance procedure, and
• An equal opportunities policy

All of which will be reviewed on an annual basis

In addition, the scheme provides an advice line enabling an employer to talk with a qualified lawyer at Berry & Lamberts about any problem that they have in the employment field for up to 12 hours in any 12-month period

EmployRight enables employers to feel secure in the knowledge that they have the necessary documents and specialist advice at hand at a cost which is fixed.

If you need support or advice about any employment legal issues you may have you can contact Paul Reader or the wider Commercial and Dispute Resolution Team on 01892 526 344.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.