Long-term sickness absence can have a significant impact on business operations and output. Managing long-term sickness can be complex and difficult for managers and HR teams, and there is a balance to be struck between supporting an employee through what may be a long-term recovery from illness, and ensuring business continuity and efficiency.

If poorly handled, it can not only be costly in terms of continued absence but can also lead to risk of claims, especially if it ultimately leads to dismissal.

In this month’s feature, we review the key areas to cover in a policy for managing long term sickness absence fairly and effectively. This matters we discuss are with a focus on dealing with a single period of long-term absence, rather than multiple instances of intermittent short-term absence over a sustained period where consideration and approach may differ.

Why have a policy to address long-term sickness?

Whether you have a separate policy, or a general policy dealing with sickness absence, it is important that employers clearly understand how to manage an absence which involves longer term incapacity, including following a fair procedure to dismiss an employee, where circumstances permit this course of action.

Whilst there is no defined metric for this or anything written into legislation, employers will typically consider any absence lasting more than 4 weeks or 28 days to be long-term sickness absence.

A good policy should clearly lay out the requirements for reporting absence, entitlements to sick pay and/or any qualifying conditions, trigger points for reviewing absence, and how return to work will be handled. Your policy should also allow for you as an employer to seek external advice from Occupational Health or medical experts in cases of ongoing absence.

Communication during absence

Line management support and review are key components of managing employee long term absence. Throughout an absence, line managers should carry out a regular reviews of an employee’s time off work, their state of health (both mentally and physically) and their willingness and/or capacity to return to work, including what the employer can do to facilitate that.

Checking in with an employee to provide reassurance and support needs to be finely balanced with giving them the privacy and space to recover without feeling pressured to return to work. The policy should set out that an employee should be expected to be contacted from time to time by their line manager or HR to check in on their well-being and expected duration of absence. It would be wise at any early stage to agree, in consultation with the employee, how they wish to be contacted, and the frequency of those touch points.

It is also important that the employee understands their obligations to keep their employer updated during a period of absence. This will include ensuring that continued absence is covered by a medical certificate (known as a ‘statement of fitness for work’) setting out the period covered and the reason for the absence. The policy should set out the implications of failing to maintain contact with the employer during absence and submit up to date medical certificates. As well as potentially impacting on an employee’s entitlement to company sick pay, it could also be treated as an unauthorised absence under the company’s disciplinary procedure.

Manager training

In order to ensure that long term absence is properly managed, it is important to ensure that line managers are suitably trained, not just on the process but also to seek medical advice where it is appropriate to do so.

With respect to sickness absence that is as a result of a disability, training should be given to line managers on employer duties to make reasonable adjustments under the Disability Discrimination Act 1995 (DDA). The duty to make reasonable adjustments arises when the employer is considered to have, or ought reasonably to have had knowledge of an employee’s disability.  However, this is a complex area for employers to navigate, and the duty may arise without any employee declaration of a disability, and regardless of any medical opinions on the question of disability. Line managers should be encouraged to investigate the reasons for absence, including through discussion with the employee to understand the nature and extent of any condition, and by obtaining medical advice.

A mishandling of absences of this type could expose the employer to a risk of discrimination complaints, so taking the time to deliver appropriate training and regular refreshers is a worthwhile investment.

Medical advice

In managing cases of long-term sickness, it is important to understand the nature of the condition, its impact and the prognosis.  This is an area in which employers will often rely on medical advice and recommendations from the employee’s GP or specialist doctors, and from occupational health.

Employers must obtain consent from an employee in order to seek a report from occupational health or seek information from the employee’s own doctor. The policy should include provision to cover the following:

• A requirement, if requested by the employer, to attend a medical examination with a doctor or occupational health advisor nominated by the employer, at the expense of the employer.
• That the employee will give their consent to a report on any such examination being shared with the employer.

In seeking and handling medical information, employers should be mindful of their duties under the Access to Medical Reports Act 1988, and the GDPR.

Managing return to work

Coming back to work after a lengthy absence can be an unsettling time for returning employees. A return-to-work interview focused on the wellbeing of the returning employee and development of a personalised plan to support them can help.

Any return to work should be planned and agreed in conjunction with the absent employee, a relevant HR professional and/or Occupational Health team. In order to facilitate a return to work, employers may need to consider options such as phased return, flexible working or alternative roles in the organisation, and remembering that trialling or offering these options may be considered a reasonable adjustment if the employee is disabled.

To support with an employee’s integration back into the workplace, employers should also consider updating the employee on important changes and developments which have happened while they were out of the workplace, and in certain circumstances a period of re-training, buddying and/or additional line management support may be beneficial.

Risk assessments may need to be updated to ensure the working environment and equipment are appropriate. For example, a Display Screen Equipment (DSE) assessment may establish the need for a specialist chair or desk to be installed for the employee.

Record Keeping

As with any absence or process in the workplace, the importance of accurate and timely record keeping cannot be understated. It not only provides evidence that procedure has been followed but provides a written account of what has been discussed and agreed at each juncture of the absence, which can be helpful in the event of future disputes, including challenges to the fairness of a dismissal.

In managing long term absence, a note should be taken of any well-being discussions with the employee during the course of the absence, and in all cases a return-to-work interview should be documented. Where absence triggers a formal procedure, a full note of all meetings should be taken by a note taker, and outcomes recorded in writing to the employee.

Formal absence procedure

Your policy should clearly set out the procedure that will be put in place and the trigger point for initiating that procedure in circumstances of long-term absence.

Employees should be provided with the right to be accompanied to these meetings. In cases where long term absence is the issue and depending on the nature/reasons for the absence, employers should be open to considering adjustments to the process, and may be under a legal duty to do so where the employee concerned is disabled. For example, this may include:

• allowing the meeting to take place by video, or at a certain location;
• permitting someone other than a colleague or trade union rep to accompany the employee to the meeting; or
• providing additional breaks during the meeting.

You may include a number of different stages to a formal sickness absence process, but typically there will be no less than three stages, each with a meeting, outcome and next steps. Where you have reached a stage in the process where dismissal is in prospect, the employee should be warned of this.

In managing a formal absence process, employers should not forget the requirement to follow the statutory 3 step dispute resolution procedures, which applies where dismissal or other disciplinary action is contemplated.

During each stage of the process, the meeting should be an opportunity to discuss the employee’s state of health at that time, look back at what steps have been taken to date, review medical evidence, consider possible adjustments to duties, and also look at redeployment.

Also, where it is possible that an employee may not be fit to return to work, the formal process should consider any benefits an employee may be entitled to in circumstances where they are considered no longer fit for work. This may include medical retirement under a pension scheme or cover under a permanent health insurance scheme.

Dismissal for ill-health

In some cases, the cause of a long-term sickness absence may be such that the employee is not expected to be fit to make a return to work at any time in the foreseeable future. In these circumstances, an employer may be able to fairly dismiss an employee on capability grounds.

When considering fairness in a dismissal for long term absence, the process should involve elements of consulting with the employee, examining the up to date medical position, and considering whether there are alternatives that could avoid a dismissal outcome.  In assessing the overall question of fairness, a Tribunal will also consider how long the employer could reasonably have been expected to keep the job open for the employee. This will be fact specific, but in BS v Dundee City Council [2013] CSIH 91, the following factors were considered to be relevant to the question of how long an employer should be expected to wait:

1. the availability and cost of temporary cover.
2. Whether employee sick pay has been exhausted.
3. The size of the business.
4. Administrative costs associated with keeping the employee on the books

Summary and top tips for employers

1. Review existing sickness absence policies to ensure they clearly address the procedure for handling long term sickness absence.
2. Management of long-term sickness absence can be complex and sensitive. Taking time to understand the reasons for the employee’s illness and seeking medical advice as required will help employers navigate this tricky area.
3. Employers can affect a fair dismissal of employees on long term sick. In doing so an employer must be able to demonstrate that a fair procedure was followed, including considering adjustments and re-deployment before terminating employment, and giving clear reasons why the continued employment of the employee in the circumstances was no longer sustainable.
4. Do not forget to consider other benefits that an employee may have access to in circumstances where an employee is facing long term incapacity. Failure to do so could prove costly for an employer.