Long Term Sickness Absence

Apart from the financial cost, absence creates other problems including extra pressure on remaining staff, time spent integrating temporary staff and potential loss of business, not to mention the demands on management time, impact on morale and legal costs if things escalate to an employment tribunal.

The compensatory award for unfair dismissal was increased to a maximum £63,000 last month [Feb 08] but there is no upper limit if a case is brought in relation to the Disability Discrimination Act (DDA). Cases can also be brought under personal injury and health and safety legislation.

The key to ensuring you do not reach this costly stage is to take professional advice and to deal with any issues as early as possible.

While employees with more than one year service have a right not to be unfairly dismissed, long term sickness absence can provide potential grounds for dismissing someone because they are unable to fulfil their contract.

Employees with a long term physical or mental condition may also be disabled under the DDA and entitled to extra protection entitling them to bring a claim without one year’s service.

Usually when contemplating dismissal, the employer will rely on the grounds of capability.

In following a fair capability procedure you should investigate the causes and likely duration of an employee’s illness. You should consider, for example, the nature of the illness, the prospects of the employee returning to work, the importance of them to your business and perhaps their length of service.

A lot of employment contracts can require sick staff to under go an independent medical examination. You should also look at contractual sick pay, insurance schemes and pension arrangements.

It is good business practice to try and identify any potential adjustments and improvements that can be made in the workplace or job role to help the employee return to work, particularly in relation to DDA requirements. Indeed, failure to do this could lead to a DDA and unfair dismissal claim being made.

Throughout the time someone is off you should maintain communication, striking a balance between the employee’s care, the needs of your business and contact that could be construed as harassment.

If you opt to dismiss, since October 2004 the minimum statutory procedure you must follow involves, firstly, writing to the employee explaining the issues and that dismissal is being considered. You must then invite them to a meeting to discuss the issues and then offer an appeal.

Frequent problems that arise when an employer is trying to investigate illness include: the employee asking not to be contacted at home; their refusal to attend meetings or to consent to a medical examination. 

Try and be as flexible as possible, for example, offering to hold the meeting at their home or rearranging the time. Set a timescale. Inform them that you may make a decision in their absence if they continually refuse to attend.

While following this minimum procedure does not necessarily make the dismissal fair, failure to follow procedure will make the dismissal automatically unfair and could increase any compensation awarded by 50 per cent.

If you are in any doubt, do not risk further cost to your business and seek professional legal advice early.

* Paul Hargreaves is an employment law specialist with Blackett Hart & Pratt Solicitors LLP. He can be contacted on 0191-221 0898.