Many employers express frustration about employees who have been on long term sickness absence, sometimes for as long as twelve months plus and feel unable, almost afraid to take any action to deal with the situation.
Within your employee handbook will be a section governing the submission of GP fit notes and a requirement for employees to keep in touch with their manager, or another nominated individual, daily during the first week and weekly thereafter as a minimum requirement. After 28 weeks, when the benefits agency takes over the responsibility for payment, the fit notes may be sent directly to the benefits office. If this is the case, there is a danger of the employee falling ‘off the radar’. We suggest that you do not let this happen and ensure that you keep in touch. In addition, you should investigate the absence and the reasons given, which may not always be that obvious.
In a move to assist small businesses in particular, the government has recently responded to an independent review of sickness absence carried out in 2011.
In response to this report the government has released a statement of intent entitled ‘Fitness for work’ and stated that it will:
- establish by 2014 a health and work assessment and advisory service providing state-funded occupational health assessments of employees off sick for four weeks or more
- revise ‘fit note’ guidance for GPs from March 2013 so the advice refers to fitness for work in general, not just a patient’s current job
- direct those employees unlikely to return to their current job to a free internet-based ‘universal job-match’ scheme
(Government-funded occupational health services for small businesses have existed since 2010 and will be funded until March 2014 when the new system will be introduced).
Fit notes issued by the employee’s GP, frequently state that he/she can return on light duties or reduced hours for an initial period. This is only a recommendation and not a directive. The employee may want to return to work for obvious financial reasons but there may genuinely not be any light duties especially in engineering /manufacturing environments. We suggest that you meet with the employee to discuss any such requests, keeping the lines of communication open and explain your decision. You may withhold SSP for any periods which are not covered by a medical certificate and often this will encourage an employee to contact you and keep in touch.
The new scheme will mean employees are required at an early stage to engage with the assessment process, otherwise they will stop receiving ‘fit notes’ and could find their absence from work unauthorised. Employers will be also be able to refer employees to the advisory service themselves in certain circumstances and the scheme will be aligned with social security benefits.
It is not clear how quickly employees will be assessed, how useful the occupational health assessment will be and how it would tie in with an employer’s own procedure for obtaining medical reports. There is a suggestion that GPs may not be required to give fit note recommendations – we will keep you posted.
Prolonged or persistent employee sickness absence can raise legal issues for employers. Formal sanctions, including dismissal, may be necessary. But employers should not allow sickness absence to continue unchecked. They should meet with the employee to find out what is causing the absence, how long the absence is likely to last and what adjustments might be needed. This will involve consulting with the employee and may require medical evidence. Employers should consider the possibility that workplace stress, an accident or bullying at work could be the cause of any absence, all of which may give rise to future claims.
Whilst we are not doctors there may be some clear indication that the employee is suffering from some form of disability in which case exercise caution because if employees have a physical or mental impairment that has a substantial, adverse, long-term effect on their ability to carry out day-to-day activities, they will be disabled and are protected from discrimination. They also have the right to reasonable adjustments in the workplace to enable them to carry on working. Employees can be awarded unlimited compensation for loss of earnings in successful claims for disability discrimination, so where absent employees are disabled, or their absence is pregnancy-related, employers should exercise caution. Always discuss such issues with your consultant as he/she may be able to advise you on an appropriate course of action.
If in any doubt, employers should ask the employee to attend a medical examination with an independent doctor or occupational health provider, usually at the employer’s cost. There are specific requirements for obtaining medical reports on employees in the Access to Medical Reports Act 1988 and any information obtained will constitute sensitive personal data for the purposes of the Data Protection Act 1998.
Employers should meet with the employee before taking action on the basis of medical reports but any recommendations should usually be followed. Employees have a statutory right to be accompanied by a trade union representative or colleague where a meeting could result in a formal warning, some other action or confirmation of a warning/action. In addition, it is advisable to consider where and when the meeting is held in light of an employee’s medical condition.
- Meet with the employee and get a Medical Consent form completed by the employee. If this is impractical post it first class and also e-mail it if possible.
- Get assistance from your consultant as to the questions to ask of the GP on the basis that if you do not ask the right questions you will not get the right answers.
- Upon receipt of the report, meet with the employee to discuss it line by line. This is all part of due process which is crucial if you are contemplating termination.
- Invite the employee to be accompanied by either a work colleague or Trade Union Representative at the discussion stage and especially so if termination is contemplated. You may be prepared to broaden this scope to a spouse or other close relative and that is your prerogative.
- Always give the individual the right to appeal against your decision to a more senior person.
Before dismissing an employee for sickness absence, employers should consider whether redeployment or reasonable adjustments could solve the problem and also whether or not there are provisions for permanent health insurance or early/ill-health retirement under the employee’s pension scheme. Once these have been explored, the employer may decide to dismiss the employee.
Capability is a potentially fair reason for dismissal but an employer also needs to show it has followed a fair process (which will involve at least two consultation meetings with the employee), acted reasonably in all of the circumstances and given the employee a right of appeal.