Managing long-term sickness absence which is at an all-time high.

With figures indicating record numbers of British workers are calling in sick it is creating more than an unwelcome headache for employers.

Sickness absence can harm productivity, cause significant financial problems and lead to costly legal action if the situation is handled unlawfully or unfairly.

Sensitivity, care and understanding are always needed for managing any work-related illness.

And it seems employers are now having to deploy such an approach on a fairly frequent basis.

Recent analysis of data by an employment law firm reportedly found the number of fit notes issued by NHS medical professionals hit a record high of 10.4m, increasing 11 per cent in 2021/22 [1 cited 25.4.23]

An employee will need to provide a fit note if they are off work sick for more than seven days [2 cites 25.4.23]

Statistics published by the Office for National Statistics show the number of people off work for an extended period of time due to illness is higher than ever before.

Employees absent from work due to long-term sickness rose to another all-time high, at 2.5 million – up 3.7 per cent quarter-on-quarter and 7.5 per cent year-on-year and the highest since records began in 1993 [3 cited 25.4.23]

How to manage long-term sick leave and best support the employee’s health while seeking to minimise operational and performance disruption and avoid legal risks can be a delicate balancing act for any employer.

Long-term sick leave typically lasts for four weeks or more, but can vary depending on the employer and terms of the employment contract.

An employee may take long-term sick leave as a result of illness or injury, mental health issues, a disability, personal or family reasons or workplace-related issues.

In any case where an employee is away from work for a considerable period of time the issues involved can be complex. Each individual case should be treated with understanding and care.

Having an established sickness absence policy in place will help an employer to fairly manage the situation and also make an employee fully aware of what they can expect in the circumstances.

It is a situation any employer could find itself in at any time. So, here is our essential guide for employers to some of the key things to keep in mind when dealing with an employee’s prolonged sickness absence.

 How should you manage an employee on long-term sick leave?

As an employer you have a duty of care to all employees. It is important to handle long-term sick leave with sensitivity and compassion, while also ensuring the needs of the business are met.

Maintain regular contact: This will allow you to keep in touch and get frequent updates on the employee’s health, understand any changes in their condition and information on any likely return to work.

Get medical advice: Where an absence from work is lengthy, you may need to obtain medical advice from the employee’s GP or a company-appointed occupational health advisor. It will help you to understand any support or adjustments they may need and also establish when the employee may be fit enough to return to work.

Be supportive: You should make sure the employee is aware of your sickness absence policies and procedures, and has access to appropriate support, such as any specialist assistance programmes available to members of staff or counselling services.

Keep records: It is important to keep accurate records of a long-term absence and reasons for it, any medical advice obtained, and any correspondence with the employee.

Consider alternatives: If the sickness absence is prolonged or a return to work appears unlikely, you may need to consider alternative options, such as offering flexible working arrangements or looking for suitable alternative roles.

 Can I take formal action against an employee on long term sick leave?

Yes, you can, if the individual is not meeting their obligations under their employment contract or if the absence is causing significant operational difficulties.

It is, however, action that should be taken with great care. It is essential that you follow a correct and fair capability procedure and guidelines [4 cited 25.4.23] .

At the appropriate time you can hold an initial informal capability meeting with the employee to discuss the absence and explore ways to support a possible return to work. The aim should be to find solutions that benefit both parties.

If such an approach is unsuccessful you can then take formal action, which should be done in accordance with your sickness absence policy or disciplinary process.

Such a procedure will typically involve setting clear expectations for the employee’s return to work, outlining the consequences if they are unable to do so and what will happen next and issuing formal warnings.

You can dismiss an employee on long-term sick leave, but it should be a last resort and it should only happen if you follow a reasonable capability procedure.

But a word of caution, before taking any type of formal action it is always advisable to seek expert advice first to ensure any action taken is reasonable.

 How do you manage a long-term sickness absence caused by a disability?

It needs a careful and sensitive approach that takes into account the employee's needs and rights under the Equality Act [5 cited 25.4.23].

Obtain medical advice: You will need medical evidence to understand the employee’s disability, impact of it, what adjustments are necessary and that could help to support a return to work.

Make reasonable adjustments: You must make reasonable adjustments when someone’s absence record, sickness record or delay in returning to work is because of, or linked to, their disability [6 cites 25.4.23].

A reasonable adjustment could be not counting some or all sickness absence related to a disability towards any trigger points or increasing the number of absences that will trigger a review.

 Keep in touch: Maintain regular contact with the employee while they are off work, keep them updated on any workplace changes and offer support and assistance.

Look at a phased return-to-work: Such a plan may enable an employee to return to work and progressively build up their hours and responsibilities, giving them time to adjust that can help to ensure they are not overwhelmed.

Treat employees legally and fairly: When an employee is on long-term sick leave as a result of a disability you should always treat them fairly to avoid acting in a discriminatory manner.  It is important to ensure you comply with the relevant legislation and best practice.

There are many examples of how things can go wrong.

In O'Brien v Bolton St Catherine's Academy (2017) the employee was dismissed while on long-term sick leave for depression and anxiety.

The employee claimed unfair dismissal and disability discrimination. It was found that the employer had failed to make reasonable adjustments to support the employee's return to work and that the dismissal was unfair and discriminatory.

The Court of Appeal gave guidance to employers regarding long term sick leave dismissal.  The guidance can be summarised as follows:

• An employer’s decision to dismiss an employee who has been absent for more than 12 months and whose return date is uncertain may not necessarily be unjust.
• For a dismissal to be considered reasonable, the employer's assessment of the impact of the absence on their operations must be a significant factor. A tribunal is likely to expect some level of disruption to the business.
• A decision to dismiss must be fair on the basis of the information available to the employee at the time of the appeal.

 And finally

It is recommended that you maintain a written record of the problems arising from an employee's absence and regularly assess the medical evidence presented by the employee.

While you are not required to wait indefinitely for an employee to resume work, it is essential to examine all factors and assess the impact of their absence on the business.