190 million working days were lost due to absence, at a cost to the UK economy of £17 billion, according to a CBI survey in 2011.
On average each employee was absent for 6.5 working days – quite a blow to the efficient running of a business. It is therefore imperative that businesses know how to manage sickness absence, particularly long term absence, to minimise disruption.
Fit notes – making the return to work easier
The “fit note” was introduced in April 2010. This gives doctors the ability to advise whether a sick employee may be fit for work if adjustments are made to his job, such as a phased return to work, altered hours or amended duties. The aim of the fit note was to reduce the number of people on long-term sickness absence by helping employers to identify when staff may be able to work in some capacity. Furthermore, to help employees return to the workplace rather than slip into long term absence – which can be very difficult to return from. An employee’s health will often improve if they are brought back to work even in a limited role – for example while they wait for an operation.
There is some debate as to whether the scheme has been successful. A recent Government survey has recommended that an occupational health body be set up to assess employees after 3 months sickness absence as this would be better qualified than GPs to advise on adjustments to assist the employee.
One benefit of fit notes is that they get the employee and employer talking about when and in what role the employee might return to work. Bringing an employee back to work should always be the employer’s primary aim. Dismissal should always be seen as a last resort. However in some cases it becomes a necessity when it is impossible for the employee to return to work in any role.
Dismissal for long term sickness
Dismissals for capability are always difficult to justify to tribunals, who, not unreasonably, may have sympathy with employees who have been ill, especially if there is any suggestion that they may be disabled under the Equality Act 2010.
To avoid costly claims you must make sure that any relevant sickness or absence procedures and employment contract provisions are complied with for those absent on long term sick.
Checklist for long term sickness absence
Prior to making a decision to dismiss you must be able to demonstrate that:
- You have kept in regular contact with the employee throughout the absence and especially in relation to discussing medical evidence.
- You have investigated the nature, extent and likely duration of the illness (including having given full consideration to the prospects of recovery, if known). This includes asking the employee for information as well as obtaining medical reports. If absence is stress-related you should refer the employee to any counselling service on offer.
- The employee is aware that their absence is continually being monitored and that continued long term absence could result in their dismissal.
Disability and reasonable adjustments
You must also show that you have considered whether:
- The employee is disabled for the purposes of the Equality Act 2010, relying on medical evidence as required.
- Any adjustments (for example, to employee’s duties, workplace or working conditions) would facilitate their return to work.
Review the alternatives
Before taking the decision to dismiss, consider all the surrounding circumstances and the length of service of the employee together with action taken in similar situations in the past.
- Consider the importance of the employee and/or the post occupied to the business, the impact their continued absence is having on the business and the difficulty and cost of continuing to deal with their absence before contemplating dismissal.
- Consider whether the employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal.
- If the employee has been absent long-term and is unlikely to return in the foreseeable future consider ill health retirement (seeking additional medical evidence for such a claim if required).
- Review medical evidence to ensure it is up-to-date.
Once dismissal is contemplated, you should write to the employee to invite them to a meeting. Give enough information about the circumstances you are taking into account (see above) and the possible outcomes, to enable the employee to respond meaningfully.
- Hold a meeting with the employee and give them the opportunity to present their case against dismissal.
- Confirm any subsequent decision to the employee in writing.
- On dismissal ensure the employee’s contractual and statutory entitlements are met and that they receive correct pay entitlement, including holiday pay under the Working Time Regulations 1998.
- In the dismissal letter identify the reason for dismissal, effective date of dismissal and offer the employee the right of appeal against the dismissal decision.
- Hold an appeal meeting if requested by the employee and confirm your decision to the employee in writing.
- Keep confidential records of medical certificates, correspondence and telephone calls and make sure you take minutes of all meetings.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.