10th June 2016
Nobody wants to deal with long-term employee sickness. It’s certainly not pleasant for the sick employee, who is potentially dealing with a lifelong condition or terminal illness, and it can be stressful and difficult for an employer to manage in addition. The entire situation is one that you won’t want to be in, but on either side it’s important to know your rights and responsibilities.
How long is long term sickness? When is it too long?
When an employee is on sick leave, they are entitled to statutory sick pay for up to 28 weeks. They may be entitled to more money, or to payments over a longer period of time, depending on their contract.
Long term sickness is typically classed as sick leave of four or more weeks.
Of course, employers can’t be expected to keep roles open indefinitely. If it’s very unlikely that an employee will ever be able to return to work, then proper dismissal action will need to be taken.
What about job termination through ‘frustration’?
‘Frustration’ of a job contract is the name given to a scenario when the contract simply can’t continue. This might be when an employee is on long-term sick leave, perhaps with a terminal illness, and an employer simply can’t keep a job role available. Frustration puts neither party at fault – the employer is not to blame for being unable to continue in the current circumstances, and the employee is not to blame for their illness or injury.
In situations where contract frustration comes into play, it’s assumed that the contract is dissolved with no further obligations. It simply ceases to exist.
When the circumstances involve long term sick leave, it’s important to tread very carefully. An employer would have to be sure that there would be absolutely no possibility of recovery, and would need to be certain that they could not provide enough accommodations to make continued work an option.
Despite all of this, the employee is afforded a lot of legal protection under the Equality Act 2010, if they plan to claim for unfair dismissal. It’s wise to gain legal support and to go through proper dismissal channels, even if you believe that you could terminate the contract through frustration.
What should an employer do when faced with an employee on long term sick leave?
If an employee is on long term sick leave, there are adjustments and changes that need to be made within the business.
- An employer may need to hire someone on a temporary contract, to cover the work of the sick employee. Alternatively, other job roles might need to be adjusted to cover the workload internally.
- An employer needs to stay in contact with the employee that’s on sick leave. This includes requesting regular updates and providing information about sick pay. Employees also need to be made aware of important changes within the workplace, and any promotion opportunities.
- Employers can use discretion. A sick employee might not want to hear about workplace changes, and it might not be in their best interests to provide this information. If the employer and employee agree, it may be worth keeping any contact to a minimum and avoiding the extra details.
- An employer has a right to request contact with the employee’s GP, to find out if and when a return to work might happen. This can also cover questions to determine whether accommodations will need to be made, whether the job role will need to be changed, or whether a phased return is more suitable to ease the employee back in gradually. It’s also worth checking whether the employee is now classed as disabled when they previously weren’t, and what this means for their employment.
What should an employee do when on long term sick leave?
If an employee is on long term sick leave, they have some rights and responsibilities.
- An employee should provide a ‘fit note’ (previously known as a ‘sick note’), to certify their absence of 7 days or more. This will need to come from a GP or a doctor at a hospital. Medical professionals may charge a fee to produce a fit note. The fit note might say that the employee ‘may be fit for work’, in which case it’s important that there are discussions regarding a return.
- An employee should ensure that they have a copy of their employer’s absence management policy. This will state how long-term absence is managed within the company. It may be part of an employment contract, or in a separate handbook.
- An employee has a responsibility to provide updates. If the employee can’t personally do this, it’s a responsibility that might pass to a carer or family member. An employee can also give permission for their GP to be contacted, so that their employer can get the details directly.
- An employee should have discussions with their employer, as long as they’re capable of doing so, covering details like options for returning to work (in the same role or a different one), or alternatives such as retirement or use of a health insurance plan.
What if an employee feels that they’ve been unfairly dismissed?
Employees can take their case to an employment tribunal if they think they’ve been a victim of unfair dismissal. The employer will then need to prove that they took all reasonable measures to aid a return to work. The employer also needs to prove that they took all circumstances into account, consulted with the employee and relevant medical professionals, and could say with certainty that no alternatives were available.
From an employee’s perspective, full cooperation at every stage – including prior to being dismissed – is absolutely essential. If an employee hasn’t agreed to provide access to their medical records, their employer can argue that they were forced to make educated assumptions.
What else does an employer need to remember?
It’s essential to give an employee a reasonable amount of time to recover from their illness.
What’s reasonable will vary from person to person, and from circumstance to circumstance. This might include time to undergo operations, and associated recovery times, or might need to cover many rounds of chemotherapy.
There are also emotional aspects to consider – some illnesses are mental/emotional and recovery times may be harder to judge, whilst other illnesses such as cancer might leave a lasting emotional impact that can affect a return to work. Remember that someone’s illness may not end as soon as they’re declared cured, because they may need time to readjust and to come to terms with their experience.
As employer or employee, seeking professional advice is essential when managing long term sickness.