How Can I Deal With Employees' Long-Term Sickness?

What Is Long-Term Sickness?

Long-term sickness refers to an employee’s prolonged absence from work due to a serious illness or injury that renders them unable to perform their job duties for an extended period of time.

It typically implies that the employee’s absence is expected to last for a significant duration, often beyond a few weeks or months. Long-term absence is usually defined as lasting more than four weeks.

This can present their employer with a wide range of legal issues – aside from the financial cost and the practical logistics of who will do the employee’s work when they’re off sick.

Why Sickness Is Becoming More Common

The percentage of working hours lost to sickness absence is now at its highest rate since 2004, according to latest data from the Office for National Statistics. Some 2.6% of working hours were lost to sickness in 2022. That is an increase of 0.4 basis points on the year 2021.

Minor illnesses such as colds, nausea and diarrhoea were the main reason for sickness. Others included musculoskeletal problems, respiratory conditions and mental health.

There were increases in sickness across all age groups. Worst affected were those with long-term conditions, women, older and part-time workers – especially service-sector employees, notably those in care and leisure.

Two Stages Of Long-Term Sickness

There are typically two stages of employee sickness that employers should be aware of:

1. Absence stage
2. Return-to-work stage.

Each stage presents specific legal issues and carries significance in terms of the employer’s obligations and potential liabilities.

Absence Stage

During the absence stage, an employee is unable to work due to their long-term sickness. Legal issues that commonly arise at this stage include:

• Statutory Sick Pay (SSP) – employers need to comply with the legal requirement to provide SSP to eligible employees who are absent due to sickness. It is essential to understand the employee’s entitlement, the notification requirements and the duration for which SSP must be paid.
• Contractual Sick Pay – employers may have their own sick pay policies that go beyond the statutory minimum. The terms of the employment contract and any applicable policies should be adhered to when determining the level and duration of contractual sick pay.
• Medical Evidence – employers may request medical evidence, such as fit notes from doctors, to verify the employee’s illness and assess their ability to return to work.
• Understanding the legal limitations on what information can be requested and how it should be handled is important to protect employee privacy and avoid potential discrimination claims.
• Communication and Support – employers have a duty to maintain regular communication with absent employees, keeping them updated on workplace matters and offering appropriate support. Adequate record-keeping and documentation of communication are crucial to demonstrate compliance and to avoid claims of unfair treatment.

Mishandling any of these aspects can lead to potential claims such as unfair dismissal (find out more here), discrimination or breaches of employment contracts.

It is important for employers to navigate this stage carefully, ensuring compliance with legal obligations and maintaining open communication with the employee.

Return-to-Work Stage

The return-to-work stage encompasses the period when the employee is ready to resume their duties following their long-term sickness. Key legal considerations during this stage include:

• Reasonable Adjustments – if the employee’s long-term sickness qualifies as a disability under the Equality Act 2010, employers have a legal duty to make reasonable adjustments to facilitate their return to work.
  Identifying and implementing appropriate adjustments, such as modified duties or flexible working arrangements, can help to ensure compliance with disability discrimination legislation.
• Capability Assessments – in cases where the employee’s long-term sickness raises concerns about their ability to perform their role, employers may need to conduct capability assessments.
  These assessments should be fair and objective; they should take into account medical evidence.
  It is important to follow proper procedures, to offer support and to explore reasonable adjustments before considering any potential dismissal on the grounds of capability.
• Phased Return or Alternative Work – employers may consider implementing a phased return-to-work plan, allowing the employee to gradually increase their workload or hours.
  Alternatively, if the employee is unable to return to their previous role, exploring suitable alternative work options within the organisation can help avoid potential claims of unfair dismissal.

Mishandling this phase can result in claims of disability discrimination, unfair treatment or failure to make reasonable adjustments.

Obtaining Medical Advice

Obtaining medical records to verify genuine employee sickness requires careful adherence to legal requirements and consideration of privacy concerns.

Employers can request medical evidence from the employee to verify their sickness. This usually comes in the form of fit notes or statements from healthcare professionals. When requesting medical evidence, employers should:

• Clearly communicate the requirement – make sure your absence management policy or employment contracts clearly outline the process for providing medical evidence and the timeframe within which it should be submitted.
• Specify the necessary information – request only the relevant information needed to assess the employee’s fitness to work and any adjustments that may be required. Avoid seeking unnecessary or excessive details about the employee’s medical condition.
• Respect employee privacy – treat medical information as confidential and handle it in compliance with data protection laws. Limit access to authorised personnel on a need-to-know basis. Ensure that any stored medical records are securely protected.

Occupational Health Assessments

In some cases, employers may decide to seek additional medical information through occupational health assessments.

These assessments are conducted by independent healthcare professionals who provide an expert opinion on the employee’s condition and fitness for work. When arranging an occupational health assessment, employers should:

• Obtain employee consent in writing – the employee’s consent is generally required before referring them for an occupational health assessment. Ensure that the purpose, scope and potential outcomes of the assessment are clearly communicated to the employee.
• Select qualified professionals – engage reputable occupational health providers with qualified healthcare professionals who adhere to relevant ethical and legal standards. This helps to ensure the accuracy and reliability of the assessment.
• Use assessment results appropriately – the information obtained through an occupational health assessment should be used solely for the purpose of determining the employee’s fitness for work and for considering reasonable adjustments. Avoid using the information for discriminatory or unrelated purposes.

There are several legal pitfalls that employers should be cautious of when obtaining and handling medical records:

• Data protection and confidentiality – employers must comply with data protection laws, such as the General Data Protection Regulation (GDPR). Ensure that proper procedures are in place to store and process sensitive personal data securely. Share medical information on a need-to-know basis.
• Discrimination and privacy – be mindful of potential discrimination claims or breaches of privacy rights. Avoid making decisions (based on an employee’s medical information) that could lead to unfair treatment or breaches of confidentiality. It always pays to get expert legal advice first.
• Inappropriate medical enquiries – refrain from requesting excessive or unnecessary medical information beyond what is required to assess fitness for work and determine reasonable adjustments. Such enquiries can be seen as intrusive and may raise privacy concerns.
• Consistency and fairness – apply consistent practices when requesting medical evidence or conducting occupational health assessments. Treat all employees equally and avoid singling out specific individuals based on protected characteristics.

Access To Medical Reports Act 1988

The Access to Medical Reports Act 1988 establishes certain rights and regulations regarding access to an employee’s medical records by employers or other parties involved in employment-related matters.

The Act provides a framework for obtaining and disclosing medical reports for employment purposes. Here are the key aspects:

• Employee’s Consent – under the Act, an employer must obtain the written consent of the employee before requesting a medical report from a medical practitioner. This consent should be specific, informed and voluntary. The Act ensures that employees have control over the disclosure of their medical information and prevents unauthorised access to their records.
• Medical Practitioner’s Obligations – when an employer requests a medical report, the Act places obligations on the medical practitioner providing it. The medical practitioner must inform the employee that a report is being prepared and provide them with an opportunity to withhold consent or request amendments to the report. The practitioner should also explain the purpose and potential consequences of the report’s disclosure.
• Employee’s Right to See the Report – the Act grants employees the right to see the medical report before it is disclosed to the employer. This allows the employee to verify the accuracy of the information and ensure that it adequately represents their medical condition. They can also request amendments to any inaccurate or misleading information.
• Third-Party Disclosure – the Act regulates the circumstances in which an employer may disclose the medical report to third parties. It prohibits employers from disclosing the report to anyone other than the employee without the employee’s consent, unless authorised by law or required by a court order.

There are limited exceptions to the employee’s right to see the report. For example, if the medical practitioner believes that disclosing the report to the employee would cause serious harm to their physical or mental health, they may withhold it.

In such cases, the employee may appoint a representative to receive and discuss the report on their behalf.

Keeping In Touch With The Absent Employee

When maintaining regular contact with an absent employee on long-term sick leave, employers should strike a balance between maintaining communication and support while avoiding being intrusive and respecting the employee’s privacy:

• Establish communication channels – at the outset, clarify with the employee the preferred method and frequency of communication during their sickness. This could be via phone, email or another agreed means. Respect the employee’s preferences and ensure that the communication channels are accessible and convenient for both parties.
• Check-ins – maintain regular but reasonable contact with the absent employee. This can involve periodic check-ins to enquire about their well-being, update them on work-related matters and offer any necessary support. The frequency and mode of communication should be discussed and agreed with the employee to strike a balance that suits their needs.
• Respect boundaries – be mindful of the employee’s privacy and the sensitive nature of their medical condition. Avoid prying into personal medical details beyond what is necessary for work-related discussions. Focus on providing assistance, addressing work-related queries and offering support, rather than delving into personal matters.
• Sensitivity – approach the communication with empathy and understanding. Recognise that the employee may be going through a challenging time. Be compassionate in your interactions. Show genuine concern for their well-being. Offer help or signpost them to available resources, such as employee assistance programs or occupational health services.
• Document communication – maintain clear records of communication with the absent employee. This includes noting the dates, the mode of communication and the key points discussed. Proper documentation helps to demonstrate that the employer has fulfilled their duty of keeping in touch. It can be useful for future reference.
• Employee’s consent and preferences – respect the employee’s wishes regarding communication. If they express a preference for limited or specific communication, such as designating a point of contact or requesting reduced contact during their absence, try to accommodate their preferences.

Determining when communication becomes too intrusive depends on the specific circumstances and the employee’s preferences.

Employers should be attentive to signs of discomfort or resistance from the employee and be responsive to their needs.

If the employee explicitly requests reduced communication or expresses that the current level of contact is excessive, it is important to respect their boundaries and adjust accordingly.

How Can Employers Avoid The Risk Of Discrimination?

To avoid the risk of discrimination when managing employees on long-term sickness, employers should follow these guidelines:

• Equal treatment – treat all employees consistently and fairly, regardless of their health condition or disability. Avoid making assumptions or generalisations based on an employee’s medical condition. Ensure that all policies, procedures and decisions are applied uniformly.
• Disability awareness – familiarise yourself and your management team with the provisions of the Equality Act 2010. Understand what constitutes a disability under the law and the legal obligations to provide reasonable adjustments for disabled employees. This will help to prevent unintentional discrimination and ensure compliance with the law. Get expert legal advice – a quick chat with an employment solicitor can help to prevent expensive errors.
• Reasonable adjustments – consider and implement reasonable adjustments to accommodate employees with disabilities or long-term sickness. Engage in a dialogue with the employee to understand their specific needs. Explore suitable adjustments that enable them to perform their role effectively. Reasonable adjustments can include modifications to work arrangements and duties, or providing assistive equipment.
• Communication and consultation – maintain open and honest communication with employees on long-term sickness. Keep them informed about relevant workplace matters and involve them in discussions about their return to work. Consult with them on potential adjustments or support they may require. Consultation helps ensure that decisions are made collaboratively and consider the employee’s perspective.
• Training and awareness – provide training to managers and employees to raise awareness about discrimination and disability rights. This includes understanding the legal framework, recognising unconscious biases, promoting inclusivity and fostering a supportive work environment for all employees.
• Record-keeping – always keep accurate records of any discussions, decisions and actions taken regarding employees on long-term sickness. Document any reasonable adjustments considered or implemented, as well as the employee’s input and feedback. These records can serve as evidence of fair treatment and adherence to legal obligations in case of any disputes.
• Review policies and procedures – regularly review and update your policies and procedures to ensure they are inclusive and comply with current equality legislation. Seek legal advice to ensure that your practices are in line with the latest legal requirements.
• Seek legal guidance – if you are unsure about any aspect of managing employees on long-term sickness or preventing discrimination, seek legal advice from our employment law solicitors. We can provide specific guidance tailored to your situation and help you to navigate potential risks and challenges.

Avoiding Direct And Indirect Disability Discrimination

Direct discrimination refers to treating someone less favourably due to a protected characteristic, such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Indirect discrimination involves applying a policy or practice that puts individuals with a protected characteristic at a disadvantage.

Both forms of discrimination are unlawful under the Equality Act 2010 – and employers have a duty to prevent and address discrimination in the workplace.

Unlike other forms of discrimination, direct discrimination does not require a comparison with someone who does not possess the protected characteristic. The focus is on the individual’s treatment, based on their own characteristics.

Indirect discrimination is based on the impact or effect of a provision, criterion or practice (PCP) rather than on direct intent. The PCP may be applied to everyone, but it can disadvantage a particular group of people with a protected characteristic.

To establish indirect discrimination, it must be shown that the PCP puts individuals with a protected characteristic at a disadvantage compared with those without it. The disadvantage must be more than just a mere inconvenience.

Indirect discrimination can be justified if the PCP or rule serves a legitimate aim and the means of achieving that aim are proportionate. However, the burden is on the employer or organisation to demonstrate the justification.

Employers’ Duty To Make Reasonable Adjustments

Under the Equality Act 2010, employers in the UK have a legal duty to make reasonable adjustments for employees with disabilities or long-term health conditions to ensure they are not disadvantaged in the workplace.

This duty is aimed at promoting equality and providing equal opportunities for disabled employees. Here are the key aspects of the employers’ duty to make reasonable adjustments:

The duty applies in relation to employees who have a disability as defined by the Act. A person is considered to have a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

What Are Reasonable Adjustments?

Reasonable adjustments are modifications or changes made to the work environment, employment arrangements or procedures to accommodate the needs of disabled employees.
The specific adjustments required will vary depending on the individual and the nature of their disability. Examples of reasonable adjustments include:

• making physical changes to the workplace – such as providing wheelchair ramps or accessible toilets
• modifying work schedules or hours to accommodate medical appointments or treatment
• providing assistive technology or adaptive equipment
• adjusting job duties or providing additional support or training
• considering flexible working arrangements, such as working from home or part-time hours
• offering support from occupational health services or workplace adjustments assessments.

Making Adjustments – What Is ‘Reasonable’?

What is considered reasonable depends on various factors, including the size and resources of the employer, the practicality of the adjustments and the potential impact on the business.

Employers are not required to make adjustments that would impose a disproportionate burden on them.

The duty to make reasonable adjustments includes both anticipatory and reactive aspects.

Anticipatory duty means employers should consider potential adjustments in advance, even if no specific request has been made.

Reactive duty comes into play when an employee with a disability requests adjustments or experiences difficulties due to their disability. Employers should respond promptly and take appropriate action.

Employers should engage in a dialogue with the disabled employee to understand their needs and preferences regarding adjustments.

Consultation helps to identify appropriate adjustments and ensures that the employee’s input is considered. Collaboration with relevant professionals, such as occupational health experts or disability advisors, may also be beneficial.

Employers should regularly review the effectiveness of the adjustments made and make necessary amendments if circumstances change or if new needs arise.

Monitoring the impact of the adjustments and seeking feedback from the employee can help to ensure their ongoing suitability.

Failing to comply with the duty to make reasonable adjustments can lead to claims of disability discrimination.

Employees can bring claims to an employment tribunal, which may result in compensation and the requirement for the employer to implement the necessary adjustments.

Managing The Employee’s Return To Work

Managing an employee’s return to work after a period of long-term sickness requires a supportive and structured approach. Here are some steps employers can take to effectively manage the process:

• Communication and planning – maintain regular communication with the employee throughout their absence to stay informed about their progress, treatment and expected return date. Prioritise open and honest dialogue to address any concerns or questions they may have. Plan for their return well in advance to ensure a smooth transition.
• Occupational Health Assessment – consider arranging this before the employee’s return. This assessment helps to evaluate their fitness for work, identifies any adjustments or support needed and provides guidance on their safe and successful return to the workplace.
• If appropriate, consider implementing a gradual or phased return to work. This allows the employee to increase their working hours or responsibilities gradually to help them readjust and manage any potential challenges. This approach can be particularly helpful for individuals recovering from a prolonged illness or injury.
• Review and update relevant risk assessments to address any changes in the employee’s health condition or capabilities. Identify any workplace adjustments or accommodations that may be necessary to ensure a safe and supportive working environment.
• Conduct a return-to-work meeting with the employee upon their resumption of duties. This meeting allows you to discuss their health status, any adjustments or support required and clarify expectations going forward. It is also an opportunity to address any concerns or work-related issues.
• Provide necessary training or refresher courses to help the employee update their skills or catch up on any changes that occurred during their absence. Offer guidance and support to help them reintegrate into their role and work environment successfully.
• Maintain regular check-ins with the employee during their initial period of return to monitor their well-being, assess their adjustment progress and address any emerging issues. Be responsive to their feedback and provide additional support if needed.
• Inform the employee about available employee assistance programmes or support services that can assist them during their return to work. These programmes may include counselling, rehabilitation services or access to occupational health professionals.

Continue to provide ongoing support and flexibility as the employee settles back into their role. Regularly review their progress and well-being, addressing any challenges that may arise. Maintain open lines of communication and be prepared to make further adjustments if required.

Dismissal On Grounds Of Ill Health

Determining when an employer can dismiss an employee on grounds of ill health requires very careful consideration and adherence to legal requirements. It should always be a last resort.
Here are some key points:

• An employer may consider dismissing an employee on grounds of ill health if the employee is incapable, both currently and in the foreseeable future, of performing their job duties due to their health condition. This assessment should be based on medical evidence, such as fit notes, medical reports or assessments from occupational health professionals.
• Before considering dismissal, employers have a duty to explore reasonable adjustments that could enable the employee to continue working or return to work successfully.
• The length of the employee’s absence due to ill health is a relevant factor. If the employee has been absent for an extended period and there is no indication of improvement or a likelihood of returning to work in the foreseeable future, it may be reasonable for the employer to consider dismissal.

Employers need to consider the impact of the employee’s ongoing absence on the business operations, including the workload of other employees.

If the absence creates significant difficulties that cannot be adequately resolved – and reasonable adjustments have been explored – dismissal may be a consideration.

Employers should engage in a consultation process with the employee before making any decision to dismiss on grounds of ill health. This involves discussing the employee’s health condition, exploring possible adjustments and seeking their input.

It may also be necessary to obtain further expert advice from occupational health professionals or medical specialists to assess the employee’s health status and prognosis accurately.

Employers must comply with their legal obligations and follow fair procedures when considering dismissal on grounds of ill health (paying particular attention to the Equality Act 2010). They should also follow their internal disciplinary or capability procedures, providing the employee with the opportunity to present their case.

Before dismissing an employee on grounds of ill health, employers should consider whether there are any suitable alternative roles within the organisation. This can help to avoid dismissal and retain the employee’s skills and experience.

It is crucial for employers to seek legal advice to ensure compliance with employment law and obtain guidance specific to their circumstances.

Employers should make every effort to explore all reasonable alternatives before dismissing an employee on grounds of ill health.

Further Reading

• The Danger Of ‘Quiet Firing’ Your Quiet Quitters. Read more…
• What Is Quiet Quitting? And How Can I Stop My Employees From Doing It? Read more…
• What The Crackdown On ‘Fire And Rehire’ Will Mean For Employers. Read more…
• Employment Settlement Agreements And The Potential Pitfalls. Read more…

Get Expert Legal Advice

Contact Coles Miller employment solicitor Hugh Reid for expert legal advice on employment contracts, disciplinary procedures and making workers and employees redundant.