For April 2023, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“We have an employee who has had repeated periods of short-term sickness absence. They have just given notification that they are sick again and off work. This is beginning to have an operational effect on the business. How should we handle this?”

There are many issues that can arise when an employee is unfit for work. How the situation is handled will depend on the facts and there are several points that you should consider as an employer.

As a starting point, you should review the employee’s period of absences and ascertain whether the employee remains eligible for Statutory Sick Pay (SSP).  You should also refer to the employee’s contract of employment which should confirm whether the employee is eligible for contractual or enhanced sick pay, over and above SSP. As the employee has been off before, you ought to clarify whether they have exhausted their entitlement to SSP, and enhanced sick pay if applicable.

Sometimes, it can be difficult to spot sporadic, short-term absences, and you should therefore look more closely at the employee’s absence pattern. As the absences are recurrent, you ought to be aware of any potential implications this will have on eligibility for SSP .  If there are less than 8 weeks between periods of absence, this will be considered a “Linked Period of Incapacity for work” (LPIW) for the purposes of receiving SSP. If the employee has more than 8 weeks between periods of absence, this will not be a LPIW and the employee’s SSP entitlement of 28 weeks will start again. If a series of LPIWs runs over three years, the employee will no longer be eligible for SSP.

Generally, employees  should keep their employer up to date during their absence. You should check your Sickness Absence Policy, as there may be a written requirement for the employee to inform you of any developments. If the employee is silent in this regard, you should make efforts to request updates from them.

You may already know the reason behind the employee being off work, however, you should, if you have not done so already, ask the employee to explain the reason for their absence, and provide supporting medical evidence, i.e. self-certification, or a fit note in the event the absence last over 7 days). Do remember that you should not insist on supporting evidence until the first 7 days self-certification days have passed.

It may also be useful to ask the employee to attend an occupational health assessment, as an expert opinion could provide more detail on the reasons for the employee’s absence, or their condition. If you decide to do so, you should have the employee’s written consent.  Depending on the reason for, and duration of, the absences, you could ask OH to consider whether the employee’s condition amounts to a disability and, if so, what reasonable adjustments are required by the business.

Often, absence issues can be resolved without the need for any formal procedure, although managing these matters formally may be the only appropriate option for you as the employee’s absences are causing disruption for the business. Formal action is subject to the reason for the absences and any OH assessment or other evidence you have received. You should consult your Sickness Absence Policy to confirm whether there is a prescribed ‘trigger point’ for when absence(s) become subject to a formal process. If the employee has reached your Policy’s trigger point, you may wish to invite them to a formal absence management meeting.

The purpose of the meeting will be for you to ascertain the reason for the absences, the likelihood of continuing absences, to discuss the effect of the absences on the business and to consider whether the employee should be offered an alternative role or given a formal warning in respect of their poor attendance levels.

If you invoke and follow through with a formal procedure and the initial steps are ineffective and the employee’s absence becomes so serious that you wish to consider dismissal, you should write to the employee inviting them to a further meeting/s, following the steps in your Policy.

The letter should refer to the length of absence, any effects absence has had on the business, relevant medical advice/evidence obtained and the outcome of previous consultations. Most importantly, the letter should advise the employee that a potential outcome of the meeting could be termination of their employment. The employee has the right to be accompanied to this meeting and they should be advised of this in the letter. Before deciding to dismiss the employee, you should have considered all relevant and up to date medical advice and alternative employment. The employee must be offered a right of appeal against your decision.

As always, appropriate action will depend on the specific circumstances and you should always ensure to follow a fair procedure, observing your statutory obligations in relation to dismissal. Failure to follow procedure could put you at risk of unfair dismissal and/or a disability discrimination claim.

Legal Island Training Resources for Your Staff

Employee Wellbeing Toolkit | eLearning Course

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