Ill health is a fact of life, and a good employer appreciates that when it strikes, employees need time off for medical assistance, recovery and rehabilitation.
But employee sickness can have a huge impact on productivity and management costs, including contractual sick pay, and agency or temporary staff to provide cover. Ultimately if it seems unlikely an employee will be able to return to work, there may come a time when it is necessary to go a dismissal process.
So here’s the lowdown on how to treat sick employees fairly whilst also protecting the viability of your business.
Many employers use standard contracts, and don’t consider what their business actually needs. In order to avoid problems before they happen, make sure you have a comprehensive sickness policy in place – not just for protection but to create a consistent and transparent work culture. Employees should know where they stand with regard to sick pay and absence leave and that they are being treated on an equal basis. Failing to give employees a written contract is not only against the law but means your usual “custom and practice” could be taken as constituting the contract. For instance, if you pay most of your employees their wages during sickness absence, but not others, you could be open to a legal challenge that such “custom and practice” had become an implied term of employment (Secession Ltd t/a Freud v Bellingham, EAT on 25th October 2005) (However, if it is found that such an implied term exists it is likely the obligation to pay sick pay would only be for a “reasonable period” (Howman & Son v Blyth  ICR 416, EAT)).
When drafting a sickness policy ask yourself: how much you are able to offer as a business, and on what terms? There is no statutory obligation to provide contractual sick pay (CSP) above and beyond statutory sick pay which can be claimed from the fourth consecutive day of absence. If you decide to provide CSP it’s a good idea to include a clause reserving the discretion to withhold it in certain circumstances to avoid abuse. You should also make clear what employees need to do to notify work of absence, and to prove ill health status.
If an employee is not entitled to CSP during sickness absence and SSP is inadequate it may be possible for them to take the time off as part of their annual holiday entitlement, but they cannot be forced to do so.
You should also include a clause that gives you the right to obtain an independent medical assessment in cases of long term sickness absence, so that you can ensure you have the necessary information and are able to make a decision on whether to bring capability proceedings or make reasonable adjustments (see below).
Finally, subject to complying with the Data Protection Act 1998, you should keep a complete record of all communications and other relevant documentation concerning an employee’s sickness.
Repeated short term absences
Sadly, some employees take time off sick more frequently than is acceptable, and with apparently little evidence of any serious health condition. Ultimately this is a conduct issue and you may need to take disciplinary action. You should always carry out a thorough investigation into the reasons for absence and allow the employee to make representations. Once you have given appropriate warnings or cautions and these have been ignored, an employee who persistently takes short periods of time off sick can be dismissed on the grounds of conduct. Every case is different and should be considered on the facts, and the employee must be given the right to appeal.
Long Term sickness
Long-term sickness can have a massive impact on workplace culture and productivity, particularly for smaller businesses. If an employee has been absent for a prolonged period of time (or is absent on a recurrent basis due to a chronic health problem), they may be protected as a disabled person under the Equality Act 2010, which defines disability as any condition that is “long standing and impacts daily life.” It is not always obvious what might constitute a disability; in Kaltoft v Municipality of Billund (C-354/13) the ECJ ruled that in certain cases obesity would be considered a disability. The issue is whether the condition is long standing and limits full and effective participation in working life. If an employee is classed as disabled, you will need to make “reasonable adjustments” to enable them to return to work (if appropriate) and carry out their job.
In such situations it is helpful to seek an Occupational Health report so that it can be determined whether the employee’s health condition constitutes a disability and if so, what reasonable adjustments could be offered once they are able to return. Try and give the Occupational Health practitioner as much information as you can in advance, so they have a good picture of the situation.
The key thing to remember is that adjustments are only expected to be “reasonable” for the particular business or employer, considering all the relevant factors such as cost, the limitations of the business premises, and the kind of business that you carry out. If the adjustments proposed are impossible to provide, then you may need to embark on a capability process with a view to dismissal.
Dismissing an Employee on Capability Grounds
Obviously this is very much the last resort, but it may be necessary if an employee cannot return to work. The extent to which an employee can carry out his normal duties will be relevant when assessing whether a dismissal on the ground of capability is fair (See McAdie v Royal Bank of Scotland  EWCA Civ 806). It could be argued that an employee’s long term absence has frustrated the contract of employment such that it ends automatically without the need for either party to terminate. This will apply only in rare cases and guidance is set out in Egg Stores (Stamford Hill) Limited v Leibovici  IRLR 76.
An employee dismissed solely on grounds of sickness cannot benefit from the provisions for combating discrimination on grounds of disability set out in EC Directive 2000/78 (see Navas v Eurest Colectividades SA ECJ 2006 Case C-13/05 on 11th July 2006, reported at  IRLR 706). However, it is best to be cautious; if you have any reason to believe that an employee could be considered in any way disabled, then review any reasonable adjustments and observe a fair procedure.
If the employee is absent or off sick for the disciplinary hearing, you should pause the procedure until they return. If they are not able to attend, or refuse, you will need to come to a reasonable decision without their attendance. ACAS suggests reviewing the following criteria:
a) any rules your business has for dealing with failure to attend disciplinary meetings
b) how you have dealt with similar cases in the past
c) the seriousness of the disciplinary issue
d) the employee’s disciplinary record, general work record, work experience, position and length of service
e) getting a medical opinion on whether the employee is fit to attend the meeting (with the employee’s permission)
If you are able to reach a decision you should tell the employee in writing and advise them of their right to appeal.
Be flexible and keep connected
A clear sickness absence policy is vital but every employee is an individual, and you should therefore be prepared to look at any particular issues or needs and adjust your approach. Are there small things you could do to enable an unwell employee to return to work, for instance letting them come in late or leave early for a while?
It is always important to keep in contact with a sick employee, particularly if their sickness is protracted. Keeping in contact helps ensure they feel part of the work community, they know they are “wanted” and their return is expected. An ongoing discussion about their progress will be useful for you, too. It can be very difficult to communicate with an employee who is off with work-related stress. as The most difficult situation arises when someone is off work with stress and communication from the workplace adds to that stress. Meetings may have to be held in a venue other than the workplace and you may wish to ask a third party, for instance a Union representative, to liaise between you.
Finally, if your business is being seriously impacted by a culture of sickness absence, there may be more reasons than just “malingering.” Employees who frequently take time off sick may be disengaged or dissatisfied with their jobs, or facing problems in their private lives. Stress and anxiety are now the number one reason for long term sickness absence, particularly in office based environments, so consider if there are ways in which your business could be a healthier place for all your employees. Taking the time to engage with employees and being flexible can pay dividends in making the workplace more attractive for everyone. The HSE have a useful stress risk assessment tool which can help define how to protect your employees from unwanted stressors https://www.hse.gov.uk/stress/risk-assessment.htm
Our solicitors are always on hand to give you friendly, professional advice. Please contact Zoe on 0203 858 9765 or email firstname.lastname@example.org. Mulberry’s has offices in Brighton and London.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.