We have an employee absent due to long term sickness.  The employee has been absent for over 6 months and we have now received a sick line for another 2 month period.  He has the use of a Company car.  Can I recover the Company vehicle whilst he remains on sick leave?

I would suggest you look firstly at the provisions of his contract of employment. Is the provision of the car a contractual arrangement?  What does the contract say about arrangements during sick leave in relation to benefits etc.?  Does it confirm that contractual benefits will continue during any sick leave period or does it distinguish between an initial period of absence, for example where there may be occupational sick pay – and a further period of absence when only SSP is paid?

It is possible that the supply of the vehicle by the Company is a contractual benefit for this particular employee.  Therefore, if the employment contract states that pay and contractual benefits are payable only during a particular period of absence, the Company may be able to consider requesting the return of the car beyond this set period.

If however pay and contractual benefits are payable at the discretion of the Company only, the Company would have to consider how it might exercise that discretion.  I suggest it considers previous occasions where similar circumstances have arisen and how the Company has exercised its discretion in those particular circumstances, and whether other employees have been allowed to retain the car for differing periods of time.  It is essential that the Company exercises its discretion fairly, in good faith and not in an irrational way.

The Company’s failure to exercise its discretion honestly regarding this particular employee, in accordance with its previous custom and practice, might give rise to a claim of discrimination by the employee against the Company.

Further, if the Company have a contractual right to cease pay and benefits after a particular period of sick leave, you should ensure that the application of that particular policy is not indirectly discriminatory. Those employees whose absence goes beyond the set period may be disabled subject to the nature of the condition leading to the sickness absence and the operation of this policy may put disabled employees at a particular disadvantage. It might be in such circumstances the Company could justify the application of the policy in re-claiming vehicles, perhaps the employee’s vehicle is part of a car pool and therefore it is needed for the use of other staff during the extended sickness absence. The Company would have to be able to demonstrate that re-claiming the vehicle in these circumstances can be objectively justified.

The Company should also bear in mind its duty to consider reasonable adjustments if this employee’s absence is due to a disability. It is questionable whether allowing a disabled employee to retain a vehicle during a period of absence, rather than during the period of attending work would automatically be considered a reasonable adjustment in the particular circumstances.

In that regard, the Company ought to ensure that they have regular updates about the employee’s condition, absence and anticipated return to employment. Consequently, the Company should make arrangements to have the employee attend occupational health for a medical examination, with regular updates, recommendations etc.

You should therefore closely examine the contractual provisions which apply during sick leave and consider similar circumstances where the Company may have reclaimed a company car.