• Recent figures from the Office of National Statistics have revealed that the numbers of people not working due to long term sickness are at an all time high. Mental health issues, COVID-10 and Long COVID, chronic health conditions and an aging workforce are said to be the cause for the rise.

Impact of long-term sickness absence on businesses

The ramifications of employees on long term sick leave can present an array of legal issues and substantial financial burdens for organisations. These encompass the direct expenses associated with long term sick pay, the recruitment and training of temporary replacements, and indirect costs stemming from decreased productivity, increased overtime expenses, and the potential impact on team morale.

What is considered long-term sickness?

Initially, employees may be signed off work for single weeks at a time, however, depending on the condition a longer fit note may be appropriate. Long term sickness absence is usually defined as a period of absence of lasting more than four weeks but will depend on the specific circumstances. As with any instance of sickness absence, proactive management of the situation is crucial. This not only helps to mitigate the financial impact and disruption caused by the absence but also safeguards against potential claims by ensuring compliance with your legal obligations.

How to manage an employee on long term sickness absence

Recent research showed that the most common reasons for long term sick leave include:

• Acute medical conditions such as cancer, or heart problems
• Stress
• Musculoskeletal problems, including back pain
• Mental ill health

Long term absences can often be uncertain in duration, making it difficult to plan ahead.

Developing a sickness absence policy

When it comes to dealing with long term sickness absence, the point at which it becomes long term and requires action will depend on the available information. For example, if the employee has undergone emergency surgery, there is little you can do in the short term to support them in returning to work. However, in cases where an employee is signed off from work by their doctor for work-related stress, early intervention may be more appropriate to try and help the employee back to work.

Sickness absence policies and procedures

To ensure employers handle long-term sickness absence sensitively, fairly and lawfully, having a clear and robust sickness absence policy is essential. This policy should clearly outline the expectations for both employees and employers when it comes to sickness-related absences. It should provide specific information, including defining long-term absence, outlining ways to support an employee’s return to work, and specifying when absence will be considered a matter of conduct.

What to do when an employee is on long term sick leave

When an employee’s absence develops into long term sick leave, employers should take the following actions:

• Keep in touch during the absence: Employers should ensure that they have acknowledged an employee’s absence at the outset and should aim to stay in regular contact. Employers should express concern for the employee’s well-being and let them know you are available to discuss their situation.
• Request Medical Evidence: Employers may request specific evidence from an employee, depending on the duration of the absence and your organisation’s policy. This often includes obtaining fit notes (formerly known as sick notes) from the employee’s healthcare provider. Fit notes outline the employee’s medical condition, the expected duration of their absence, and whether they are fit for any work. These notes help the employer verify the legitimacy of the sickness absence and can provide information on the expected length of absence or any potential adjustments. Employers should also engage Occupational Health to help review an employee’s reasons for absence and provide advice on how to help the employee back to work. In some cases an employer may want to get advice from a specialist working with the employee.
• This could include a physiotherapist or mental health specialist. A good Occupational Health provider should be able to refer employers on to the relevant professionals in these cases. Additionally, it’s important for employers to ensure that they have good policies and procedures in place, such as a sickness absence policy and procedure, which provides information on how absences will be managed and documented.
• Maintain Communication: Stay in regular contact with the employee, respecting their privacy and preferences. Ask for updates on their condition, treatment, and expected return date. Clear, empathetic communication is key.
• Document Everything: Maintain thorough records of all communication, accommodations, assessments, and any steps taken during the absence. Clear documentation can be crucial in demonstrating that you have acted fairly and lawfully.
• Assess Sick Pay Entitlement: Determine the employee’s entitlement to sick pay, which may include statutory sick pay (SSP) or any enhanced sick pay as per your company’s policy. Communicate this to the employee clearly.
• Offer Support: Discuss with the employee any reasonable adjustments or accommodations that can be made to facilitate their return to work when they are ready. This may include changes to their duties, working hours, or workplace environment.
• Monitor and Review Progress: Keep track of the employee’s progress, and if necessary, hold regular review meetings to discuss their return and any further adjustments required.
• Review Policies: Regularly review and update your workplace policies and procedures to ensure they are in line with current employment laws, especially those related to disability discrimination.
• Legal Compliance: Ensure that you comply with all legal obligations throughout the employee’s absence and return to work. This includes making reasonable adjustments where the employee is a disabled person and avoiding discrimination.
• Seek Legal Advice: Consider seeking legal advice early on to ensure you are handling the situation appropriately.

To avoid discrimination claims when managing employees on long-term sickness, it’s crucial to follow established best practices and ensure compliance with the Equality Act 2010.

What if an employee is ghosting communications, unable, or unwilling to attend meetings?

You may have been advised by a medical professional that an employee cannot attend meetings to discuss their absence, which can seem like a significant obstacle to progress. Understanding the reasons behind this is crucial.

If the employee is protected under the Equality Act, it’s important to consider reasonable adjustments. For instance, could the meetings be conducted through written correspondence or held at an alternative location, such as the employee’s home?

In some cases, the employee, even if covered by a fit note, may simply be disregarding attempts to establish contact. In such situations, it’s important to determine the reasons for their reluctance to engage and explore the possibility of communicating through a third party, such as a family member or representative.

Contact with an employee who is legitimately absent should be appropriate in the circumstances. However, if they are not engaging and are not covered by a fit note, then a disciplinary process may be appropriate. In most cases, this would require a full disciplinary process, which would likely result in a written warning the first time, followed by a ‘totting up’ dismissal if the conduct continued.

Supporting an employee’s return to work after long term sick leave

The aim of any sickness absence management process should be to facilitate an employee’s return to work. When an employee returns to work, consider the following:

• Conduct a return-to-work assessment: For employees who have experienced prolonged and serious illness, this is vital. Prior to their anticipated return, a return-to-work meeting, or a series of meetings, can help establish whether they are fit to return to work and how best to reintroduce them. Collaboration between managers and employees during these meetings is key to identifying necessary adjustments, which may include a phased return, which will allow for a smoother transition back to work after long term sickness.
• Reasonable Adjustments: If an employee’s long-term sickness qualifies as a disability under the Equality Act 2010, employers are legally obligated to make reasonable adjustments to facilitate their return to work. These adjustments, such as modified duties or flexible work arrangements, are crucial for ensuring compliance with disability discrimination legislation.
• Capability Assessments: In cases where the employee’s prolonged sickness raises concerns about their ability to perform their role, employers may need to conduct capability assessments. These assessments must be fair and objective, taking into account medical evidence. It is essential to follow proper procedures, provide support, and explore reasonable adjustments before considering potential dismissal based on capability.
• Phased Return or Alternative Duties: Employers may consider implementing a phased return-to-work plan, enabling the employee to gradually increase their workload or working hours. Alternatively, if the employee is unable to resume their previous role, exploring suitable alternative work options within the organisation can help prevent potential claims of unfair dismissal.

Long term sick dismissal

Can you dismiss someone on long term sick leave?

It is possible to dismiss someone who is on long-term sick leave, but it must be done carefully and in compliance with employment law. In general, the return to work is usually considered a more favourable outcome following an extended period of sickness absence for several reasons:

• It brings back an experienced employee to the workforce, preserving valuable skills and knowledge.
• It avoids the costs associated with recruiting and training a new staff member, saving both time and money.
• It eliminates disruptions caused by redistributing workloads or responsibilities during the employee’s absence.
• It enhances staff morale by demonstrating active support for the returning employee.
• It contributes positively to the organisation’s reputation as a caring and professional employer.

However, it’s essential to acknowledge that long-term sickness absence can pose significant challenges and resource constraints for employers.

Terminating the employment of an individual on long-term sick leave can expose employers to the risk of unfair dismissal and disability discrimination claims. Therefore, it should always be considered as a last resort, after all reasonable efforts have been made to facilitate the employee’s return to work.

Under the Equality Act 2010, it’s essential to show that you have taken appropriate steps to facilitate the employee’s return to work, including examining alternative duties, hours, and roles where feasible. Maintaining accurate records of all communications with the employee and meeting notes from return-to-work interviews will be vital in demonstrating that these steps were taken and explaining any reasons for not implementing proposed adjustments for practical business reasons.

Justifying dismissal for long-term sick leave

Any dismissal due to ill-health should be supported by medical evidence, particularly from an occupational therapist who can provide a professional opinion. To justify dismissal:

• The employer must demonstrate full adherence to their sickness absence procedures and maintain records of these procedures, including initial absence reports, follow-up communications, medical evidence, risk assessments, and return-to-work plans.
• The employer should illustrate how the employee’s absence has disrupted business operations, such as reallocating existing staff, cancelling projects or meetings, or incurring expenses related to temporary staff.
• Employers should provide a reasonable amount of time for the employee’s recovery, taking into account the specific circumstances. If the employee has no clear return date after a prolonged period of absence, this uncertainty, along with the disruption caused to the business, may justify dismissal.
• In cases where the employee refuses a fair, non-discriminatory return-to-work plan within their capabilities, dismissal may be the only option. However, the employer must prove that the employee’s refusal is unreasonable.

Legal considerations for managing long-term sickness absence

Managing long-term sickness absence requires balancing employee support with business needs. Employers must ensure compliance with the Equality Act 2010, maintain clear records, and take appropriate action when necessary. Seek legal advice from our experts at ESP Solicitors to ensure that all actions taken are in line with employment laws.