Local Government Lawyer - Dealing with the long-term sick

Dealing with the long-term sick

Tuesday, 09 March 2010

Long-term sickness absence can be a major headache for employers, whether in the public or private sector. Jolyon Berry provides some top tips on how to manage the problem successfully.

The difficulties caused by managing the long term sick are significant and employers facing such challenges suffer a range of emotions from concern to frustration and the feeling of helplessness.

Immediate problems include the logistics and difficulty of managing replacement staff. By comparison, it is easy to fill the vacancy of, say, a maternity leaver because there is (usually) good notice of the employee’s departure and the employer has a fair idea about the amount of time the employee will be away. Problems with long term sickness tend to crop up only after some time has passed and include tackling the decision to change the employee’s pay from company sick pay to the far less generous Statutory Sick Pay (unless contracts of employment are very clear about what staff get, when and for how long).

More fundamental issues arise when considering whether the employee should have the protection of the Disability Discrimination Act, whether or not the employer should make a claim under their Permanent Health Insurance policy (PHI) (if applicable), or if the time has come to dismiss the employee on the grounds of incapability.

Whilst prevention is better than cure, the following list might be considered to be a summary of ‘top tips’ when managing an employee who has been (or is likely to be) absent for a long time.

Communication is key. Keep in touch with absent staff and ensure they keep you informed of their prognosis. Keeping in touch and requesting reasonable updates from staff is not harassment.
Get a second opinion. An examination by a company appointed doctor or specialist gives an employer reassurance that it has the full picture. It is also an opportunity to put questions to the medical experts to help determine whether or not the employee is ‘disabled’ for the purposes of employment law.
Unless there are exceptional circumstances, do not dismiss an employee during a lengthy period of absence if the employee is covered by a PHI scheme. This could constitute breach of contract and if the dismissal was found to be unfair or discriminatory, compensation for the loss of a PHI benefit is likely to be significant. The better way to proceed is to make a claim and dismiss (where appropriate) only if the claim is rejected.
Consider ‘reasonable adjustments’ to the workplace and encourage staff back to work whether or not they are disabled. This serves two purposes; first it protects employers in case the employee is disabled. Secondly, it reduces the risk that an employee will stay away sick. The longer an employee is off work, the harder it is to reintegrate them.
Do not be afraid to manage the employee in accordance with company policy, warn them if they fail to keep in touch, consider them for redundancy if applicable and terminate their employment if they are unlikely or unable to return to work within a reasonable time (subject to PHI).

Lengthy absences can often be a symptom of other problems at work. Cynical employees have been known to take significant periods of time off (usually for ‘stress’) when facing disciplinary action. The health of employees might also be adversely affected by their working conditions or dysfunctional relationships with colleagues. For these reasons, coupled with the laws in place which seek to protect vulnerable employees, it is important that employers manage long term sick employees effectively.

Jolyon Berry is a partner at Birketts. He can be contacted on 01473 406356 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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