Long Term Sickness Absence

legal updates

If a dismissal is inevitable then it is important to follow the correct procedure when dealing with the actual dismissal and use the minimum 3-stage process.

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Sickness absence, whether too frequent short or long term can present a lot of difficulties for employers, particularly small businesses. 

The absence of an employee places a higher proportion of strain on other employees when there are not so many to distribute the extra work around. 

With long term sickness there is potential for the problems to amount to a disability as defined by the Disability Discrimination act.  Any action taken against such a person could be challenged as discriminatory giving the employee a potential case at an Employment Tribunal.  It is important for fairness that with a long term sickness situation evidence is sought from a medical professional, whether the person treating the employee or otherwise, as to the likely outcome in terms of recovery time and whether they consider the person is considered disabled, by definition.  It is necessary to gain written permission from the employee to do this and give them the opportunity to see the report before the employer.  We have standard template letters for clients for this purpose.   If the person is disabled then consideration has to be given to making reasonable adjustments to get back to work.  It is sensible to consult with the employee.  Likewise it is not unreasonable to request visits to the employee to assess the prospect for return to work and discuss any assistance that can be given.  Such assistance may include a change of job structure or role.

In the case of Lynock v Cereal Packaging Ltd 1988 a number of aspects which an employer should take account of

  • consultation
  • appropriate warnings of risk to job is there is not a return to work
  • personal assessment of the situation
  • nature of the illness
  • likelihood of recurrence or other illness
  • length of absence(s)
  • impact on the rest of the workforce
  • the need to have the work done

Finally, if a dismissal is inevitable then it is important to follow the correct procedure when dealing with the actual dismissal and use the minimum 3-stage process.  See the separate article in this bulletin.

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