Join us for our Employment Law at 11 - December 2021 webinar, in which Christine Quinn from the Legal Island Learning and Development Team and Seamus McGranaghan, Director at O’Reilly Stewart, will discuss your questions on long-term absence and the law. The Legal Island Webinars are sponsored by MCS Group - more details can be found at www.mcsgroup.com

In this webinar, Christine and Seamus look at the following key points:

• Sickness Absence Policy and what it should contain
• Conducting an investigation, including obtaining medical evidence and understanding the prognosis
• Consulting with the employee
• Considering disabilities
• Considering alternatives before dismissal

View the webinar recording and transcript here.

Transcript

Christine: Good morning, everyone, and welcome to our final "Employment Law at 11" of the year. It's very hard to believe I'm actually saying that, but yes.

Today's session we're going to be looking at long-term absence and the law. Anybody who was at Seamus's session in the Annual Review knows it was really well received. We have so many questions. It just seems to be something that everyone wants to talk about. There are just so many nuances to it, so we've got loads of questions to get through.

For those of you who weren't, don't worry. I will get you up to speed with what we went through. I'll go through some of his key takeaways with you before we kick off.

And I know lots of you will have questions for him, so please do drop them into the questions box as we go, and I'll add them in.

So, first things first, let me introduce Seamus. Seamus is the Director of Commercial over at O'Reilly Stewart Solicitors. Obviously, our regular contributor here.

I'm Christine Quinn. I am one of the Learning & Development Officers here at Legal-Island. I am employment law qualified, England and Wales being my speciality, but I've also worked here in Northern Ireland for a good while as well.

So we do have a special offer for you today: the Employee Wellbeing eLearning Toolkit. Now, there will be more details in your follow-up email, so look out for that coming after the webinar.

This is a comprehensive training for all Northern-Ireland-based employees, ensuring staff are aware of the importance of mental health and wellbeing in the workplace.

The toolkit is designed to enable all-staff training for organisations with seven key mental health and wellbeing topic areas to choose from. So if you're interested, look out for that email. There's also a chance to get a free download of the courses if you choose to do so.

So let's get into the webinar. We've got a few questions for you guys first, as always. Katie is in the background there, if you could bring up the first question for us.

Polls

So that's the second one, but we'll go with that one. Anecdotally we hear that non-COVID-related absences went down during lockdown. Is this the experience in your organisation? There was a lot in the press about this, so if you could click yes or no, we'll see how true it is.

Okay, looks like just about everyone has voted. If we can bring the results up there, let's see. So wow, that's pretty resounding. Seventy-nine per cent are saying yes, and 21% are saying no. Seamus, does that surprise you? Are we expecting that result?

Seamus: Yeah, I was sort of expecting it. Just when I was doing my research for my seminar at the Annual Review, I did note that some of the statistics that were showing up from various media sources were saying that the number of absences have reduced. I suppose that was maybe on the basis that people were working from home, that they were able to continue on with their work maybe when they weren't feeling up to their usual par, but able to accommodate the continuance of their working from home.

The other thing I suppose was just that given the number of COVID cases that we had throughout 2020, it's interesting as well that it hasn't massively impacted thereupon people's ability to continue to work.

And I think the experience has been that the medical and scientist reports were that most people contract mild symptoms, and whilst they maybe can work from home, they're able to continue to do so probably more in those severe cases where people are unwell or maybe have to take to bed or they're just not at a place where they can continue to work.

So I think that certainly the working from home aspect has assisted in relation to absences and the sort of flexibility that is there as well, and maybe just that hybrid aspect as well, where people are able to . . . Maybe if they're not feeling well, but they can continue to work at home and maybe come into the workplace later.

But there are obviously those industries as well where you just simply cannot work from home, and I think it's encouraging all around.

Christine: Yeah. I had a nasty cold that seems to be going around and I think in good conscience if I had been going into the office and commuting, I don't think in this environment I would have gone into work because it wouldn't have been right to spread the joy around.

But I was comfortable. I could just wrap up warm, head to the home office, and there was no chilly commute to deal with. There was no kind of coughing around other people and being anti-social. So I was able to work. I think there's a lot of that going on.

Let's have a look at our next poll question. Have we got glitch in the matrix maybe? Oh, here we go. So how confident are you in dealing with absence disciplinaries and dismissal? So, if you could click one of the answers, "Very confident, they don't stress me at all", "Okay, but they make me nervous", or "Awful. Very stressful. I hate doing them". If we could get your views on that.

Okay, looks like the numbers are slowing down there. "Okay, but they make me feel nervous" has come out on top there, 64%. "Awful", 14%. That's actually higher than I thought that one would be. And 22% are very confident.

So, Seamus, I think we're doing the right webinar today. What do you think?

Seamus: Yeah, that looks like it. I mean, just before we came on, we were just talking briefly there about the impact of dealing with long-term absence. It does create anxiety for managers and for human resources because there's that fear factor around dealing with those circumstances. People maybe feel uncomfortable contacting individuals that they know maybe that aren't well. They don't want to pester them.

But there is also the very real side of the operation of the business, and we know that it does put additional and sometimes serious pressure on the business whenever someone is out on long-term sick leave. Somebody else has to pick up work. The employer has to pay somebody maybe to come in to do the work in the meantime.

And it can have that real negative effect on other members of staff who are maybe having to do their own work and pick up somebody else's work as well. That can result in people feeling demotivated and just not happy at their place of work.

And actually, during the research, it was maybe one of the reasons why people decided to leave the place that they were working in.

There can be very genuine reasons for the absence, and there can be those other circumstances where you have the repeat offenders who take intermittent periods of absence. That really does affect the other members of the team and the other members of the workforce there that are having to pick up the work.

And it can have those additional problems for the business itself. Maybe the reputation of the business. Maybe the return the customers are getting isn't as quick as what it was because of absence. So it really can have those negative effects.

We need to balance that out with the difficulties of dealing with long-term options, but making sure that the business is continuing and giving a consistent value to its customers as well.

But certainly, I can get that you can have one bad experience, and it really does leave a mark on you for dealing with that long-term absence going forward.

Christine: Yeah, I think that that leads me very neatly into your takeaways from your session at the Annual Review. So I've pulled a few of them together for those of you who weren't there.

So, really, the first and I think one of the most important things to remember is don't ignore the problem. When I was working in private practice, and even when I was working in-house, I think a lot of even very experienced HR managers kind of shied away from it. "How do I deal with this? This is going to be tricky. Am I going to offend somebody?" But actually, in my experience, not dealing with it causes much more problems than getting stuck in there. So that's the first takeaway.

Also, Seamus talked about reviewing and retaining the correct documentation. We're going to talk a bit today about your sickness absent policy, and what it should contain.

Conducting an investigation, including obtaining medical evidence, is really important and understanding the prognosis of your employee. We'll talk a little bit about that, too.

And consulting with the employee. Again, that was something that I found when I was in practice that people shied away from. There's nothing wrong with just asking somebody, "What's going on?" in a sensitive way, of course.

Then, of course, you've got your pitfalls, which are the worries in this one, considering disability and reasonable adjustments.

And then you've got to review your alternatives before dismissing. Could you do a phased return? Could you amend duties? Could they be redeployed? Could you make those reasonable adjustments?

And then also make sure you've got a procedure and you're following it. There's no point in having this perfectly drafted sickness policy if nobody knows what's in it and you don't follow it.

And then just being alive to potential risks while you're engaging with the employee is really key.

Seamus, if we have a wee look at some questions that came in on the company sickness policy first. Remember, please drop in any more questions if you have them as we go.

So in your discussion, Seamus, you mentioned trigger points in your policy. What do you mean by that?

What is a trigger point? Why are they important, and for what type of event should you have them?

Seamus: I think there was some confusion around that, but the triggers that I was focussing on during my seminar were really in relation to often you'll see within policies and procedures that deal with long-term absence, or absence in general, that there are certain time points that will trigger action by the employer in relation to the employee that has been on absence.

I think it's a good idea that certainly the expectation would be that you would have a record of absences for employees. It's important that that is kept and retained.

And sometimes within small businesses there isn't a good record kept, and sometimes there is records kept, but they're not reviewed. So it's important to keep on top of that.

I mean, in general, if you're operating a small to medium-sized business you'll be aware of who your repeat offenders are, who are the ones to watch in relation to absence.

But there will also be those other sensitive absences where people maybe have had different things happening during the year. And sometimes we do just have bad years where we maybe have a bereavement. We maybe have children or a partner that are sick. And there appears to the employer that there's been a lot of time off and the suspicions start to arise then at that point.

But the triggers that I was talking about were really in relation to . . . Certainly, within public sector, you will definitely see within public sector absence management procedures whereby there are certain triggers that will encounter subsequent action by the employer.

And whether that is after a period of four weeks or referral to Occupational Health, whether it is a period of eight weeks where there's a referral to HR and there is a welfare meeting that is sought. Sometimes that will happen quicker than eight weeks, and it depends on the pattern of absence also.

Whether absence is regular, but maybe not long-term. Maybe there's that pattern of a week here and another week there, a few days missed, and things like that.

So those are the trigger points that we're looking for. But what we want to make sure is that the trigger points are set out clearly within the absence policy and procedure.

And really, the key aspect there is that there's a consistent approach to employees so that employees don't feel that they're being treated differently or less favourably than somebody else.

The triggers as well will move through that process, and you'll see this again . . . Mainly I've come across this in public-sector cases that I deal with, that there will be a trigger point for a review meeting.

There might be an informal warning provided at that point, that there's an expectation for the employee to report to work. If there is continued absence, or there's a repeat of the absence within a certain period of time, there may be possible disciplinary action against the employee in relation to their absence.

You do need to be careful just in and around what reasonable adjustments you might have to consider. I suppose the real issue that can arise is that where you have a period of long-term illness, the flag is up in relation to potentially the employee having a disability. And if there is a disability, what reasonable adjustments might you need to apply? Not just to how you deal with the employee, but also to your policy and procedure on absence.

If somebody is suffering from a disability and you're wanting to ensure that they're not treated less favourably, you might need to reconsider some of those natural trigger points that are set in the policy and procedure.

So, if you had unfortunate circumstances where you had an employee who had a very bad car accident, the realistic aspect of it is that you're probably going to be aware that the employee is not going to return to work in a few weeks.

Or alternatively, if you have an employee that has a cancer diagnosis, that's an immediate red flag for a disability, and those amendments that you'll need to make to how you deal and how you approach with that employee.

So those were the triggers that I was speaking about, and what the intention was behind that. It does cover triggers for referral for Occupational Health. Generally, if you get an Occupational Health report back and it is for somebody that's on long-term sick leave, it will likely say that they will review the employee again in four to eight weeks or maybe at a three-month period.

So it's just keeping on top of those triggers that are there and it is working through that process to mirror up the steps that you take in accordance with the medical advice that you've received.

What I'd mentioned during the seminar as well was that the Equality Commission had specifically said that when you're dealing with long-term absence, there are a few red flags when it comes to potential discrimination.

And what they say is there are five in total. Be careful when you're dealing with long-term absence that arises as a result of disability-related absences. Employees affected by cancer specifically, which I'd had mentioned.

Pregnancy-related absence and maternity leave. There's obviously special statutory protection for these types of employees.

Women affected by menopause. I did see there on Legal-Island's weekly update there that there has been a surge in cases for disability complaints related to menopause. So that's a really interesting one, and I think as of recent times, it's one that employers will need to just tread carefully with.

And then absence in relation to gender reassignment is the other one that the Equality Commission flagged up there as well.

So I think that you can't just take your policy and procedure and say, "It's black and white". Although we want a consistent approach, we do need to consider it in light of the circumstances of the employee's absence itself.

Christine: Yeah, I think that has really hit the nail on the head of why people are nervous about this type of thing. Yes, you have a policy and lawyers like to say, "Follow your policy. Have a policy". But then we always add the "but" at the end. "But in certain circumstances". So you do have to be quite dynamic in your approach. I think it's really just about concentrating on people as individuals, not a box-ticking exercise.

"This is a person. How can I deal with them empathetically whilst also serving the needs of the business?" And that's the real balance you need to strike, which is so tricky.

Occupational Health reports

You did mention Occupational Health reports. When I was advising in private practice, depending on the size of the business, I would have said, "Get an Occupational Health report". In other circumstances, where you maybe had somebody with a cancer diagnosis, their specialists would often write reports for you as well. It's another option. But do you think a report like that on its own is enough?

And also, sometimes quite complex medical issues come up, and we don't have medical degrees. Do we understand what's going on? And what should we do if we don't?

Seamus: That's it, as well. And particularly if you're coming down the line to consideration for dismissal, I think that's an important point, Christine, that you just made. A tribunal panel are not medically qualified either, and they will be relying on the medical evidence that you have obtained, essentially.

My starting point tends to be that it depends on the circumstances of the absence. And the majority of times, I would be of the view that an Occupational Health report is beneficial because it's independent.

I think we've all had those circumstances where we've maybe asked for the GP report, and you get the report and it very much appears that the GP has either brought the employee in for a consultation whenever we could do that, or they're spoken to them on the phone, and you get a rehash of that discussion.

I always feel with Occupational Health reports there's a bit more independence. There's a bit more probing that goes on, and they tend to answer the questions that you've asked.

That sort of is one of my main takeaway points when it comes to obtaining medical evidence. I really don't like whenever you get the pro forma from the Occupational Health Service, and it's tick-the-box exercise, and then they give you a wee tiny box at the bottom to add some questions and comments. I really like to particularise the circumstances and ask specific questions.

And if it's a long-term absence, I will be asking, "When can the employee return and is that in the foreseeable future?" And that word "foreseeable future" is important for me whenever I'm dealing with these sorts of cases for clients. We'll get to that a little bit later on.

But you're exactly right. I dealt with a case not so long ago where my client was the employee and had a stroke followed by a number of smaller strokes that had taken place.

And it was apparent whenever the employer obtained the Occupational Health report that the condition was so complex that the Occupational Health report really wasn't sufficient.

And to be fair, the Occupational Health doctor recommended that a specific report be obtained from the employee's consultant. Now, that took a period of time in order to organise. Not just because we were going through the COVID aspect, but it's just more difficult to get a report from a consultant because they're very busy.

There had to be a link-up in relation to obviously obtaining consent from the employee, my client, to be able to get that consent for him to be saying that he was happy for a report to be provided.

We did get a consultant report, and then we also got a secondary consultant report, because the impact of the stroke upon my client meant that he was also attending a specialised service within the trust.

There was also a separate doctor that was helping him deal with different matters in relation to his actual physicality rather than just what was going on inside the body.

So there were a number of reports that we had to review in relation with Occupational Health. Certainly, whenever the Occupational Health had originally been instructed, the Occupational Health doctor won't cite the GP's notes and records. And again, my client had to be contacted for consent in relation to that.

So specifically, and I had mentioned it during the seminar, there is legislation that applies. It's The Access to Personal Files and Medical Records (Northern Ireland) Order 1991.

We're also focussing very much on GDPR, and a doctor's surgery will simply not just send the medical notes and records out to the employer. They will want a form of consent signed by the employee to say that the employee consents to the notes and records being provided.

And they'll probably use the word "relevant" GP notes and records at that point. They will not simply disclose the full employee's GP notes and records.

So there is an issue of consent certainly to consider, and the employee should be asked to consent to the provision of medical information.

If the employee doesn't consent, the employer is left in a position of dealing with the assessment that they do in relation to the employee on the basis of the evidence that they have available.

And also, even to the point I've had circumstances where the employee will attend the Occupational Health report. They will be sent the report by the occupational health doctor first for their comment to make sure that it is accurate.

It's not an opportunity for the employee to get into a war of words or into a complaint with the doctor about what the doctor thinks. That's the doctor's professionalism and their judgement. But they do get an opportunity usually to see the report. And they can at that point say, "No, I don't want you to provide the report to my employer". I've had those circumstances in the past.

So definitely, Occupational Health is probably a starting point for me. In circumstances where it's appropriate, I think, yes, a GP report can assist. You might need to go back to get the GP notes and records for the Occupational Health doctor. And then, in addition to that, you might need to get a specialist report maybe from a consultant.

We also have occupational therapists as well that will attend places of work, or maybe now at the home office, to assess and make sure that it's an appropriate environment, and that there are all the reasonable adjustments that would be required for the employee to continue doing their work.

So definitely, there's a position where you're not just focussing on occupational health. You're moving outside of that as well.

Christine: Yeah, I suppose it's, again, having a dynamic approach and treating people each as individuals. I suppose you just have to kind of get your tribunal goggles on slightly. How will a tribunal view my decision in light of the information that's in front of me? So you always just have to go back, "Can I justify this? Does it seem fair? Would I be prepared to say this in a tribunal?" So just get those goggles on and look at the information that way.

We've had a really good question come in just now. Seamus,

You mentioned "foreseeable future" in relation to long-term absences. Are there any timelines around this before an employer evokes a disciplinary process, or can or should this go on for years?

Seamus: Well, again, just whenever we were talking briefly before, we were talking about some cases that we were aware of as to how long the sickness absence had been. It really shouldn't be at a point where absences are happening over a number of years.

Yes, it depends on the difficulty or the problem that the employee is incurring. If it's one of a medical nature, it is about keeping on top of that from a point of view of welfare meetings, the appropriate medical information. That will provide the employer with insight.

But the law also does say that if you're in a contract of employment and that contract is for you to provide services to your employer, and if you're failing to provide those services because of your inability through your health, there is the right for the employer to at some point sever the contract. There would be a frustration of the contract because the employee can't fulfil their end of the bargain, essentially. I mean, that's simple contractual law, but we do need to be careful in relation to that approach.

There's some of the case law that refers to this aspect of . . . Definitely, any decisions to dismiss have to be reasonable. And one aspect that I always like to look at is, "Can the employee return to work? And can they do so in the foreseeable future?"

If the report is saying, "Yes, they can return to work but it's going to be six months", I think you need then to look at your business and decide whether or not the business can accommodate the continued absence of the employee for six months.

In most cases, I would have thought that a business can do that. But if realistically they're saying it's going to take a year and a half, at that point, are you then saying, "Well, look, that's going to cause me difficulties in terms of my business operating. It's not within the foreseeable future at that point, and should I be taking steps here to look at terminating the contract of employment?"

Obviously, any termination that you undertake, you have to follow the statutory procedure. Don't miss out on that just because you get a medical report that says, "The employee is not set to be able to return to work in the short term or in the foreseeable future". Make sure that you follow that statutory procedure.

And then you're really into looking at all of the alternatives to dismissal before you finally get to the point where you would be at a position of saying, "We've exhausted that process".

So some of the things you were talking about there, Christine, in relation to looking at alternative duties, alternative roles, amendments to the role itself, whether there can be a career break that can be given in the meantime to provide time for the employee to get well again. Those sorts of options all need to be considered.

And certainly, if you end up at a tribunal . . . Part of my seminar that I provided was really looking at this from the stance of what a tribunal would look at and would look for. It's about being able to justify and be clear with the tribunal why the employer has to make that decision.

And key within that also is the fact that the employer is entitled to say, "What is the impact of the absence upon the business?" And if there is that detrimental impact upon the business, it will improve your ability to move the dismissal. But you need to be able to justify and show that and be clear about that with a tribunal if you get to that point.

Christine: Yeah, I think my view was always that anything outside normal coughs, colds, general seasonal stuff, have in the back of my mind an eye on it. Then when it starts to turn into a month rather than a couple of weeks' absence, which would be more normal, I suppose, then I would start to have that on my radar to look at.

But I think if you have good communication with your employees throughout any type of illness, it's going to make this much easier.

So if it's the norm to check in with someone and say, "How are you doing?" then if a long-term absence issue comes up and you're doing that as good practice, then it's not going to look unusual or like you're picking on somebody. So I think the communication aspect of it is really good.

But I've just noticed a question has come in on long COVID. I'm going to try and move on to COVID as well because we've got quite a few on that.

So let me see the question. "As there is little medical precedent set for long COVID in terms of recovery time and long-term disability . . ." This individual has a number of employees off for approximately 18 months or longer with long COVID, and would normally have terminated in other circumstances.

What is the advice around long COVID? Is it a wait and see, because we don't know enough? Or is it just this is an illness like any other, deal with it the same way?

Seamus: I think my view in relation to it is that you do need to be careful when you're dealing with aspects of long COVID. I haven't come across any cases yet where I've seen medical evidence that would say that this is a disability. Often the medical evidence will not be just clear about that. It will say, ultimately, that's up to a judge or a tribunal panel to decide. We always hate to see that.

But it will say sometimes within the reports that this is likely to fall within the definition of a disability set out in the Disability Discrimination Act. But ultimately, they will caveat that by saying that's not their job to decide that.

The two things with long COVID, I think, is that if it is circumstances of long COVID, you certainly should have the benefit of medical evidence in order to link that up and make sure that it is all relevant to and that it relates to COVID that has happened.

The other side of it as well, then, is just in relation to, with long COVID, there can often be an underlying conditions that have been there. And you need to be careful, then, that if there are underlying conditions or disabilities that the employee had, that's going to automatically trigger those protections in relation to that.

But certainly, I think we're in this novel process really of COVID. We're not 100% clear, because we're 18 months into it, maybe a bit longer at this point. I haven't come across any case law or precedents that have been set in relation specifically about dismissal and long COVID.

But I think that we need to use our head in the sense that it is likely that from what we've read . . . And certainly, I did read a lot of articles, newspaper articles, and media articles about long COVID, and there's no doubt that it is real. There's part of my seminar, if you go back and look at it, where I cover off on what the symptoms of long COVID would be and how long they go on for.

But even just recently, I did see on the news on the television of people that are still suffering from effects of COVID from whatever they contracted back in March 2020.

I mean, if you look at the definition of disability, I think it's likely to fall within that definition where it is having an impairment on somebody, on their day-to-day living, which seems to be the position. And it seems to be particularly around this aspect of fatigue.

But I would assume as well that at this point, any employee, if you're talking 18 months, will have exhausted their sick leave entitlement, whether that is SSP or whether there has been a company sick pay scheme there. I think it's just about weighing up what the business can cope with at this point in relation to the absence of that employee.

If the business can manage and can continue on . . . Obviously, you'll have those other aspects in relation to holiday entitlement that will accrue while somebody is absent. That can be a burden on the business itself, the accrual of that holiday and the worry of holidays not being used, and then having to pay the holidays out, and things like that as well.

It is a tricky one to deal with, and there's no doubt that we're going to see more of that going forward. But I do think that it will be important at this point to be getting some clear medical evidence and really pushing medical evidence for a timeframe from whenever the employee can return to work.

Or look at those alternatives for the employee, to say, "Look, maybe you can't come back full time, but can you come back on a part-time basis? Are there aspects of the role that you're going to struggle with as a result of your inabilities at the minute? And can we look at maybe a new role for you, where maybe it's not as physical, maybe it's going to be a seated job in an office rather than being out in the yard or in the factory?" Look at all of those alternatives.

I think if you're getting to the point where there aren't alternatives, or there isn't anything further that can be done, and the medical evidence is clear that there's no real timeframe for the employee to return to work, I would have thought you're at the point then, at that stage certainly, of giving consideration to termination.

Christine: Yeah, and I think the important thing in those circumstances . . . When I was working with the Federation of Small Businesses, obviously, a lot of small firms, their reaction is always, "Well, we're tiny. There are only 10 of us. We can't redeploy". That is perfectly true and a legitimate answer, but the important thing is to document that thought process. Get it down in writing. You don't need to just have the thought. You need to prove the thought, which is what I was always reiterating.

So if there's nowhere else to go in the business, you need to document a management meeting where you're talking about that. You're going through the options and ruling them out one by one and giving those reasons. Just really make sure you've got your paperwork up to scratch.

I encountered that so many times. "Well, there are only three of us. How can I redeploy?" Let's write it down. Let's write down the thought process.

So I suppose what you're kind of saying is long COVID is a sickness like any other, but it probably does need to be ring-fenced with disabilities or even with the likes of maternity-related sicknesses. So you can't sort of start to trigger those normal things in the sickness policy. You just need to tread that a little bit more carefully. Would that be a good summing up?

Seamus: Yeah, absolutely. And I suppose it's the unknown at the minute. We could find in another six months that there's a proper definition for long COVID and that there is protection built around it in relation to absence and disability as well.

Look, I think I would lean heavily in terms of the medical evidence. I would ask the appropriate questions whenever you're sending the employee for Occupational Health.

And be aware that the employee has a right to see the letter that you send the Occupational Health. So don't be putting anything in the letter that you wouldn't want disclosed. But don't be afraid to ask those questions that are legitimate questions for the operation of the business. You should be asking for clear replies in relation to your questions that you've asked.

Christine: Brilliant. Thanks, Seamus. We've got a lot of questions on disability and stress. I think that is another aspect that a lot of people struggle with, and it is a tricky one.

So in relation to stress, how can you manage someone back into the business when they've been off with stress and they're not really wanting to engage with HR?

So there's a very fine line between showing concern for somebody, trying to get them back in. And stress is obviously . . . you can actually just trigger somebody's illness or disability by engaging with them. So how would you deal with that?

Seamus: Well, I think your policy and procedures should be clear. And the expectation of the employee should be that during a period of absence, there will be contact that will be made by the business. The policy should be clear that the aim of the employer is always to assist the employee to return to work. There is that onus on the employer to give that assistance.

The only way that you can do that is through engagement. You need to understand what the problem is. What is the reason for the absence, and what are the limitations for the employee? What's preventing them from returning to work as a result of that? So really important that there is proper engagement.

Now, there are certainly circumstances that I've come across where you would say to . . . My advice would be to the employer to give a little bit of headspace here. Give a little bit of room for the employee. They're clearly struggling at the minute, whether that's of an issue that is stress resulting from something in their personal life, or whether it is stress that is arising from the workplace.

But there are those times where you do need to give a better room and a bit of space to the employee. But that should be managed, and through conversation with the employee, you could say, "Listen, I'll give you a bit of headspace. I'll not be in contact for two weeks, but I'll give you a ring in two weeks, and we'll have another discussion then to see how you are".

Certainly, it would be good practice that . . . I know that this can be very well-intended and just not viewed that way by the employee. But those discussions that happen between the employer's representative and the employee, they really shouldn't come from a difficult place. They should be coming from a supportive place of making inquiries as to how the employee is.

Explain to the employee the reason why you need to keep in contact, that maybe there's somebody else picking up the role, or you've brought somebody in on an interim basis, and you need to be able to work around their return to work, when that's going to be likely, and to be fair to somebody else that is maybe in on a "you're in for four weeks, but we might need you for longer" type thing.

So I think if you gave the explanation to the employee about all of that, it should assess in relation to their expectation that you're going to be in contact with them.

I think be clear with the employee about how the communication is going to take place. Ask the employee how they want to communicate. Is it by way of telephone? Is it by way of email? Is it by way of attending their home? Or do they want to meet in a sort of open third-party place, like a hotel? Or even a coffee in the park sometimes, obviously weather depending and all kind of stuff.

Have those discussions with the employee. Don't sort of shy away from that. But also don't leave the employee thinking that it's going to be an intimidatory meeting, and you're going to be forcing them to hand in their notice because they can't return to work. It's getting the balance right in relation to it.

In terms of engagement where you have that employee . . . Listen, I've had those circumstances where you have the employee who will not engage, who shuts down completely, and then you hear from another employee that they saw them out on a Saturday night at the local bar and they were dancing on the table. Those are the real infuriating circumstances that arise, and they do arise.

But again, look to lean on your medical evidence that you have. It's similar to the circumstances where you have an on-going disciplinary and somebody goes out on the sick.

When you're arranging your Occupational Health report, ask the Occupational Health doctor to comment on what the . . . Are they fit to attend meetings? Are they fit to have phone calls?

I have had reports back where OH have said, "We don't recommend that there's contact from work for a period of four weeks. But thereafter, we would encourage contact at that point. Just give him that little bit of headspace". That sets it down very clearly for everyone.

And then there's that fear factor of, "I don't want to lift the phone to this person because it's going to be about conversation. They're going to think I'm wanting to harass them to return to work or to resign". It's about managing that the best that you can, and about keeping a note of the telephone call that you have as well, recording what was discussed.

But if you can get at least documentary evidence or medical evidence to say that engagement is appropriate and that it should be happening, then you're clear to proceed with the employee.

If the employee is still refusing to engage, I would be writing to the employee at that point to say, "You're failing to engage with me. I've medical evidence to say that you're fit to engage with me. And if you don't engage with me, then I'm going to have to look at other alternatives here, which could include potentially disciplinary action". So that is how I would deal with it.

There's not a one-size-fits-all for these circumstances. It is frustrating. We often don't have a magic wand that we can wave in order to sort the problem out. But in the back of the mind, it should always be balancing of the reasonable approach of dealing with the employee and what the needs of the business are. And as you say, make sure you're keeping it documented.

Christine: Well, believe it or not, Seamus, that is nearly our time up. So I'm going to ask you for some of your top tips. What would be your three top takeaways on long-term absence?

Seamus: We do have the three types of absence. We have short-term. We have the intermittent absence, which is really the most difficult one to deal with. And then we have long-term absence as well.

The main point is to have a policy and procedure in place as to how you're going to deal with absence. If you're acting unilaterally, if you're acting in an inconsistent manner, you're going to come up against problems.

The best way to deal with it is to have the policy, to share the policy with the employees. Make sure that they are aware of what the policy is, where they can get their hands on it.

And again, set down in the marker at the start of absence. "This is what you should expect from the company. We are going to keep in contact with you. We are going to do our best to encourage you back to work. And we will take steps in order to facilitate you returning back to work because we're in a contractual relationship and we need you to be here".

So definitely have a policy in place. Act consistently in relation to it. It can be really tricky. You can have employees that you have so much sympathy for because of something that has happened in their life, and you end up treating those employees differently than you treat other employees.

Inconsistency. The big problem for inconsistency is that the employee will internalise and say, "Why am I being treated differently?" And they will come out with an answer that probably isn't reflective of the situation, but they will come back and say, "Is it because of my religion? Is it because of my disability? Is it because of my gender?" That's where the problems will arise, where you don't act consistently. So have a policy. Apply it consistently.

And I think the third one would be to have your red flag up for dealing with those matters that the Equality Commission have set out for us for when we're dealing with long-term absence when it comes to discrimination. Do be careful of it.

And I think ultimately and don't be afraid to deal with the problem. That was the opening point you made there, Christine. If you bury your head in the sand with it, you're going to end up with somebody out on absence for two-and-a-half, three, or four years, where it's never being dealt with.

And you're running at a risk of that employee ending up in a difficult position with monies owed to them in respect to holiday pay, and claims, and all sorts when you do come to try to deal with it down the line. Try and deal with it as you're working through the process.

Christine: Brilliant. Thanks so much, Seamus. That was really great. I have so many more questions that came in through the Annual Review and today. People just have so much to say about this. So thanks very much covering off this topic for us.

Seamus: No problem at all.

Christine: Just have one more point to make really on the Annual Review of Employment Law. If you did miss it, you can still get access to the recordings and note bundles. You can catch up with the recordings of all 19 sessions, including Seamus's one on long-term absence and the law, and you can access over 400 pages of detailed notes and presentations, including a comprehensive list of takeaways, which myself and my colleague Rolanda put together, of course, across the two days.

There's also a copy of our comparative table you can get, which outlines the similarities and increasing differences between Northern Irish Employment Law and the rest of GB.

So look out for the email after the webinar on that, or visit legal-island.com/events to get your hands on those really useful documents.

All that really remains to be said now is Happy Christmas. That's the first time I've had to say it this year. I hope everyone has a lovely Christmas period, and we will see you back in January. I believe it's 7 January for our first webinar of the New Year.

Thank you very much to Seamus for everything he's done this year. And thank you to Katie as well, who you never see, but she works away in the background of all these webinars keeping everything on track. So thank you very much for that, Katie.

We will see you all in the New Year, hopefully not talking about COVID. Thanks.