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Employees On Long Term Sick Leave: An Employer’s Perspective
Alan Massenhove is a partner specialising in commercial litigation and employment law at Sykes Anderson LLP.
Employers faced with employees on long term sick leave or who suffer frequent shorter periods of absence as a result of illness are often in a difficult position. As the laws relating to sick leave and discrimination have become ever more comprehensive, understanding your rights as an employer has never been more important.
Assess The Position
It is generally accepted that employees on long term sick leave are not good for business. As an employer, you need to be able to rely on your staff being fit enough to carry out their responsibilities. Whilst long term sickness requires sympathy and understanding, it is important to maintain a commercial perspective. The first step is therefore for you to assess your employee’s health problems.
It is important to have a sickness policy in place which allows you to be involved in dealing with your employee’s illness. Implementing return interviews for employees who have been off sick can help both parties to identify and address any ongoing problems. From an employer’s perspective, it is also helpful to assess whether any underlying cause of frequent absences may be as a result of a disability. If there is any possibility that your employee may be disabled, you will need to consider your obligations under the Disability Discrimination Act 1995.
Suffering From Anti-work-itis?
If you come to the conclusion that your employee is malingering, you may need to investigate further to assess the reason why. It may be that your employee is being seriously bullied or intimidated or that there is some psychological complaint or stress affecting your employee’s performance. Investigations need to be sensitively and supportively handled.
If there is any suggestion that your employee is being bullied for any reason, you need to take steps to protect yourself from a potential claim. Your basic duties as employer include:-
- A duty to take reasonable steps to ensure the safety and security of your workers;
- A duty to prevent discrimination on any of the prohibited grounds;
- Vicarious liability for the actions of your employees including actions which may amount to harassment under the Protection From Harassment Act 1997.
A breach of any one of these duties could potentially give rise to a claim against you. If the employee is in danger of developing a psychiatric condition (such as depression) which may affect their ability to work for a prolonged period as a result of a continuing failure to address the situation, you could be facing a very substantial claim for damages.
Of course, if your employee is simply lazy and wants to be paid for ‘duvet days’, this is less likely to be an issue and you can move on to the next step in the process.
Dealing With Sickness Absence
The general advice in dealing with sickness absence is to treat it as a capability rather than a conduct issue. An employee’s inability to perform the job he is paid to do is a potentially fair reason for dismissal. If you were considering dismissal, you would need to follow a fair procedure as well and the decision to dismiss should be one which a reasonable employer would take in all the circumstances.
Recent case law confirms that it is still possible to dismiss fairly on the basis of capability even when the employee’s illness has been caused by you – where for example bullying in the workplace has led to psychiatric injury to your employee. In these circumstances though you would have to show that you had done everything possible to assist the employee to return to work.
Getting It Wrong
There are several possible consequences of getting this process wrong; these range from failure to spot a problem leading to a claim for discrimination or under the Protection From Harassment Act (which could have serious implications for you) to dismissing a newly employed member of staff and facing a fairly minor claim for breach of contract (which is unlikely to be catastrophic – depending on the circumstances!)
The good news, according to a recent case law, is that the employees’ compensatory award in respect of salary during the notice period may be reduced if the employee would have been off sick for the notice period. In these circumstances, the employee may only be entitled to statutory or contractual sick pay as applicable instead of their full salary for the notice period. This does not mean that you should decide to dismiss an employee on long term sick leave on the basis that their award may not be very high.
You should also note a recent decision of the European Court of Justice holding that an employee who is on sick leave for a whole year may still be entitled to the statutory minimum period paid annual leave, despite the fact he or she was not actually at work.
As an employer, no-one expects you to be a charity and maintain employees who cannot or will not do their job. There is however an obligation on you to ensure that you behave fairly and reasonably and do not discriminate. Preliminary investigation and an accessible support network are therefore important tools as employers should ensure that they are in full possession of all the facts before considering dismissal as an option. Employers should ensure that they take detailed legal advice on their options at the earliest sign that there may be a problem.
For more information please contact Alan Massenhove at Sykes Anderson LLP on 020 3178 3770
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