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Sickness Absence

When an Employee is not fit through illness or injury to work the issues that an Employer will want to consider include:-

  • The reason for the absence and whether or not it is genuine.
  • The Employee’s contractual provisions relating to sick pay.
  • Whether the incapacity has been caused by workplace factors such as an accident at work, or stress.
  • Is the absence related to a disability which may need reasonable adjustments?
  • Whether the frequency and extent of the illness is a cause for concern.
  • Holiday bookings and the overlap with sickness.
  • The appropriate evidence of incapacity that the Employee will need to provide.

When an Employee is off sick it is important to maintain appropriate contact with Employee striking a balance between offering support whilst at the same time keeping informed if the Employee is off for a long a period of time.  It is usually appropriate to keep them involved in informal activities like social events and sending them newsletters.  The Employer will also want to keep undated on the medical conditionIf an Employee is off frequently or for a long period of time then they should be encouraged to update their Employer on their medical condition. 

The Employee should not be working elsewhere during their sick leave (that would normally be gross misconduct) though there is no bar on them pursuing leisure activities or going on holiday. 

Return to work interviews are held at the Employer’s discretion.  Some Employers conduct them for every absence (no matter how brief they may be) whereas others call them only after long term absences.  If they are conducted it is important they are done for all Employees so that individuals don’t feel singled out.  The Employer will want to think about rehabilitating an Employee into work by considering things like a phased returned to work, alteration or re-allocation of duties, re-locating a workstation, varying start and finish times or purchasing new equipment.

Long Term Absence

Some contracts provide a date on which a formal series of meetings about long term absence can commence, generally after medical evidence has been received.  A usual timeframe is three to six months.  It is important not to let the situation drift whilst being reasonable and sympathetic with the Employee.  In cases of long term sickness it can be helpful to obtain a report from the Employee’s GP, or from an independent specialist who may be able to provide more objective information.  Whilst many contracts give the right to obtain medical evidence it is still necessary to obtain the Employee’s permission for the report to be released to the Employer.

In the case of either persistent short term absences or a long term absence where there is no end in sight then the Employer will consider terminating the Contract of Employment by reason of capability.  Prior to doing this, the Employer will need to meet with the Employer to discuss the situation in greater detail and explore all possible avenues and throughout any process behave reasonably.  In particular, it is important to understand whether or not the Employee is suffering from a disability (as set out in the Equality Act 2010) and if so what reasonable adjustments could be made to retain them in the workforce; any failure to do this can lead to a claim for disability discrimination where compensation is unlimited

Employment Team

Mark Serby
Director & Head of Employment Law

Holly Dobson
Director

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