Managing Long-Term Sickness Absence in the Workplace |
Thursday, 14 May 2009 14:36 |
A significant problemAbsence can be a serious drain on a business, with the cost of occupational sick pay, lost production or the need to bring in replacement staff potentially running into millions of pounds The Legal Position Proper handling should enable employers to reduce the impact of long-term absences, and facilitate a sick employee’s return to work. Unfortunately, this is not always possible, and it may ultimately become necessary to dismiss a sick employee. When handling sickness absence, you need to be aware of the legal position. Employment Legislation If an employer considers taking action to dismiss employees for ill-health, they must be ware of their responsibilities under the: • Employment Rights Act 1996 Ill-health is a potentially fair reason for dismissal as it relates to the employee’s capability for performing the work which he/she is employed to do. However, in order for the dismissal to be fair, an employer must then show that they have followed a fair and proper procedure and acted reasonably in the circumstances. An Employment Tribunal will consider a number of factors including: - the nature of the employee’s illness - the likely duration of the illness - the nature of the job - the needs of the employer - the employee’s length of service - the type (and amount) of sick pay paid to the employee - alternative employment A Tribunal will judge the reasonableness of an employer’s actions against the background of their size and administrative resources. The key to a fair dismissal for long-term ill-health is obtaining the information to enable you to make a fair and reasonable decision, discussing it with the employee, and following a fair procedure. The key information required is up to date, comprehensive and helpful medical evidence. • Employment Act 2002 (Dispute Regulations) 2004 As well as satisfying the general reasonableness criteria, from a procedural point of view it is necessary as a minimum standard for an employer to follow the statutory minimum dismissal and disciplinary procedure. Failure to do so will render any dismissal automatically unfair and subject to a minimum basic award of 4 weeks pay. Furthermore, any compensation awarded by an Employment Tribunal may increase by 10-50%. • Disability Discrimination Act 1995 (“DDA”) Employees with health problems may be protected by the DDA depending on the seriousness and effect of their medical condition. Uniquely, The DDA requires employers to make reasonable adjustments to disabled employees’ working arrangements and/or conditions to accommodate them. If you fail to comply with the DDA compensation can be unlimited • Health and Safety at Work etc. Act 1974 (“HSWA”) An employer has responsibilities under the HSWA to protect employees, after they return to work, if they become more vulnerable to risk because of illness, injury or disability. • Data Protection Act 1998 The sickness absence data an employer keeps and processes has to comply with the Data Protection Act 1998. If an absence record contains specific medical information relating to an employee this is deemed sensitive personal data and an employer will have to satisfy the statutory conditions for processing such data. Put the correct procedures in place Ensuring a fair procedure is followed is essential. In cases of long-term sickness a fair procedure includes: • Investigating the cause and likely length of absence; • Keeping in regular contact with the employee; • Obtaining medical evidence; • Consultation with the employee regarding that medical evidence and the way forward; • Consideration of reasonable adjustments including alternative employment, especially in DDA cases. Recent Cases of interest There is a myriad of case law affecting long term sickness absence cases. A quick summary of some recent cases is as follows: Fowler v London Borough of Waltham Forest In this case, the Employment Appeal Tribunal (“EAT”) confirmed that, it will not be incumbent on employers to keep disabled employees on long-term sick leave on full pay contrary to their sickness policies, as a reasonable adjustment under the DDA. The EAT re-affirmed it’s decision in O’Hanlon v HMRC stating that payment of sick pay in itself was not an adjustment as it would not help the employee to return to work. This decision has come as a relief to employers. However, the O’Hanlon case is going to the Court of Appeal, so the situation could yet change. The appeal hearing is scheduled to take place this month. Inland Revenue v Ainsworth & Others This case deals with whether workers on long-term sick leave can designate part of their sick leave as accrued annual leave. The Court of Appeal held that once an employee has been off sick for 12 months, annual leave does not accrue when a worker is on sick leave. However, this case has now been referred to the ECJ by the House of Lords (where it will be called HM Revenue & Customs v Stringer & Others) so the law remains uncertain for the time being. Royal Bank of Scotland plc v McAdie In this case the EAT held that an employer can still potentially fairly dismiss an employee even if the employer is either wholly or partially responsible for the employee’s incapacity. In McAdie medical evidence had been obtained which was unequivocal in that there was no prospect of the employee returning to work. Despite the clear medical evidence the Employment Tribunal held that the dismissal was unfair because the illness had been caused by the employer’s unreasonable behaviour. However, the EAT reversed this decision. The EAT said that there was clear evidence that the employee was incapable of performing her work and there was no prospect of recovery (the employee had also agreed with the medical report and had said that she wished to leave). The EAT held that the employer had no option but to dismiss the employee. The EAT however gave a clear warning that where the employer may be responsible wholly or in part for the employee’s condition the employer may have to “go the extra mile” in helping the employee out of sickness. Offers of alternative employment or to put up with a longer period of sickness absence than would otherwise be reasonable must be considered before contemplating dismissal. On 27 March 2007, Mace and Jones are holding a training session at Haydock which includes a workshop providing further guidance on how to manage sickness absence. If you would like further information about this event, please e-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Ross Meadows, Solicitor, Employment & Human Resources Department, Mace & Jones In the meantime, if you require any further advice on the subject of managing sickness absence in the workplace or if you would like to discuss bespoke training about this subject, please do not hesitate to contact Ross Meadows by telephone: 0791 991 5161 or email:
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or any member of the Mace & Jones employment and human resources teams listed at www.maceandjones.co.uk
Help at hand for small firms struggling with employment law Employment law is a mounting problem for small businesses forced to make redundancies because of the recession or dismiss staff following disciplinary breaches, the Forum of Private Business (FPB) is warning.
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Last Updated on Monday, 21 September 2009 09:06 |