Long-term sickness
We are pleased to share the final instalment of our trilogy of articles concerning sickness in the workplace, this article deals with long-term sickness.
According to a recent report by the Health Foundation charity, workers suffering from major illnesses in the UK, such as chronic pain, type 2 diabetes and depression, will increase considerably from around 450,000 in 2019 to around 700,000 by 2040. With such increasingly high levels of ill-health in the UK, employers will need to ensure they have protocols in place to address employee sickness and that these procedures are compliant with employment law.
Risk of non-compliance – including disability discrimination
Employers do not often realise that if they dismiss and fail to adequately support employees struggling with long-term sickness, they are potentially at risk of disability discrimination claims. If the employee’s condition is a physical or mental impairment that has a ‘substantial’ and ‘long-term’ adverse effect on their ability to carry out normal daily activities, the employee’s condition meets the definition of disability under the Equality Act 2010.
There is no qualifying period to bring a disability discrimination claim, i.e. this is a day one right for employees. Understanding the risk that a disability discrimination claim could bring is of fundamental importance to employers, for example such claims have no upper limit on compensation (ie compensation is unlimited) unlike other claims in employment law such as unfair dismissal. Employers should also be aware that there are multiple different types of disability discrimination; direct discrimination, indirect discrimination, discrimination ‘arising from’ a disability and failure to make reasonable adjustments. Employers have a duty to make reasonable adjustments, which is explained in more detail below.
Aside from discrimination claims, unfair dismissal claims are also a risk, where employees have at least 2 years’ continuous service. Unfair dismissal law recognises that, in most cases, an employer cannot simply dismiss an employee for taking sick leave; it must act fairly and reasonably. Due process should be followed and below are some examples of the best practice approach that employers can take.
Medical evidence
As a starting point, the medical evidence required for absences of seven calendar days or less is typically a signed statement from the employee giving the dates and brief description of their incapacity. However, in cases of longer-term sickness, a doctor’s certificate will be required which is commonly referred to as “statement of fitness for work” or “fit note“.
Employers can decide what medical evidence they require from employees and at what stage. However, for the purposes of administering Statutory Sick Pay (SSP), employers are not allowed to insist on a doctor’s certificate for at least the first seven days.
An employer should always make sure that they have obtained up to date medical advice before making a decision about the employee’s on-going employment, including possible dismissal.
Occupational health assessments
- The Health and Safety Executive guidance recommends that employers provide access to occupational health services when needed.
- Occupational health can help employers with workplace assessments and adjustments, advise on referral to rehabilitation and support services, and advise on returning to work.
- If an employer does not have occupational health services available, employees should be encouraged to contact their GP or other healthcare provider for a report on their condition and ability to return to work.
- Throughout this process, it is essential to ensure that accurate and legible records are kept of all meetings and correspondence. If an employer dismisses an employee who has been on long-term sick leave and that employee subsequently brings a tribunal claim for unfair dismissal, one of the key issues to be determined will be whether the employer acted reasonably in treating the incapability of the employee as grounds for dismissal. Written records will be vital evidence to demonstrate that an employer acted reasonably.
Reasonable adjustments
As mentioned above, under the Equality Act 2010, employers have a duty to make reasonable adjustments for disabled employees in certain circumstances. These include where elements of an employee’s job place them at a substantial disadvantage compared to non-disabled people. Employers are only required to make adjustments that are reasonable and that alleviate the disadvantage. Employees on long-term sickness may fall within the definition of “disabled” in the Equality Act 2010 (as set out above).
There’s a risk of some types of disability discrimination claims if appropriate reasonable adjustments are not put in place when required and an employer will need to demonstrate this duty has been complied with prior to any subsequent dismissal. However, there can be ‘objective justification’ for discrimination arising from disability. This is where an employer has a genuine need to make a decision that leads to lawful discrimination. For example, something resulting from someone’s disability might mean they cannot do a certain job even if reasonable adjustments are made.
What may be considered to be a reasonable adjustment is exceptionally wide and can cover a number of things. Some practical examples of reasonable adjustments that an employer could put in place include:
- Phased return to work – this could involve an employee coming back part-time for an initial period during which they become accustomed to the working environment at a slower pace.
- Varied start and finish times.
- Alteration or reallocation of duties.
- Returning with additional capacity and coverage – particularly in cases of long-term sickness, where the employer has engaged a temporary replacement, it may be appropriate to keep the temp worker on for a period to enable the employee to re-familiarise themselves with their duties.
- Relocating an employee’s workstation – this could remove any obstacles to efficient working, for example by avoiding a staircase for an employee with mobility problems.
- Purchasing equipment or software which can assist an employee to carry out their duties e.g. a sit-stand desk.
Permanent health insurance
Permanent health insurance (PHI) works by paying an employee around 50-75% of their salary when they are unable to perform their job for a certain period of time. Where an employer offers this benefit to its employees it must be considered before any decision is taken to terminate an employee’s employment on grounds of incapacity.
Pursuant to principles enshrined in case law, employers should be very careful if they are looking to terminate the employment of somebody who is entitled to benefits under a PHI scheme as set out in the leasing case of Aspden v Meat Poultry & Meat Group (Holdings) Ltd (1996). They must exercise considerable caution as they could be liable for potentially large amounts.
Dismissal
Where all options have been exhausted and an employee is unable to return to work after a period of long-term sickness, dismissal on the grounds of incapacity may be the only option. As set out above, prior to taking this decision an employer should have sought medical advice, made any appropriate reasonable adjustments, considered PHI and consulted with the employee. Employers will want to manage these difficult cases delicately and ensure that supportive measures have been offered to the employee before a decision to dismiss is reached, together with a fair and thorough process being followed.
Jones Chase is a specialist employment law firm based in the centre of London with an excellent track record of looking after those that we assist. We achieve fantastic results for our clients and make a difference. We have a wealth of experience working with a variety of companies of different sizes and at different stages of growth, ranging from PLCs to a multitude of SMEs. We also assist national brands in a range of sectors. Please get in touch to discuss your needs. We look forward to working with you.
This article was written by Simren Savjani with assistance from Dean Jones, Harriet Bowtell and Liza Knight.