We recently delivered a seminar aimed at updating employers and HR professionals on upcoming changes in employment law and discussing key themes. Sickness absence management was a key focus of this seminar, as we have seen a number of queries on the subject and a tendency for errors being made.
Nearly three years after the onset of the first UK lockdown, the Covid-19 pandemic is still impacting on employers in terms of managing those employees and workers who are suffering with the effects of long covid and who are on long term sick leave. Many employers struggle with the process of dealing with staff on long-term sick leave and often do nothing for fear of getting it wrong. Unfortunately, doing nothing is never the answer as it can leave the employee feeling cast aside and can cause resentment amongst the staff who are covering their role.
The Office for National Statistics published data in January 2023 stating that 2 million people reported symptoms of long covid, symptoms which can affect people both mentally and physically. As a result, long covid could be classed as a disability under section 6 Equality Act 2010, and there have been some employment tribunal decisions in support of this. Accordingly, employers must be cautious of the risk of discrimination claims before making any hasty decisions on how to deal with employees who are off sick with long covid or other conditions.
On a general level, all employers should have a clear policy on dealing with sickness absence within the Staff Handbook, ideally with separate procedures for short term absence and longterm absence. It should be clear on how an employee must notify and certify their absence, their entitlement to SSP/company sick pay, and what they will be asked to do upon return to work e.g complete a certification form or attend a return to work meeting. Employee absence costs a shocking median £798 per employee per year and so it is essential to plan in advance how you will deal with absence in the interests of the business.
Employers should ensure that they maintain regular contact with employees and provide support where possible. They need to be able to understand the condition an employee has in order to comply with the potential duty to make reasonable adjustments if the condition amounts to a disability. Obtaining an Occupational Health report is an effective way to gather information on an employee’s condition and prognosis for returning to work, however it is not safe to rely wholly on the report. A number of tribunal decisions have gone against the advice of OH reports, as the test for disability is a legal one rather than a medical one. Ultimately, employers should endeavour to gather as much information as possible and seek legal advice on the specific circumstances to determine how best to manage a particular employee’s absence.
Unfortunately, despite offering support and adjustments, in some cases it may still not be possible to facilitate an employee’s return to work. In such circumstances, employers may consider ill-health retirement, dismissal on the grounds of capability, or engaging in a protected conversation with a view to negotiating a settlement agreement. Any steps taken should be done so with caution, as following the correct procedure is crucial to limiting exposure to Tribunal claims.
Settlement agreements are a really useful tool in allowing the parties to part ways, and when done right they can achieve a suitable outcome for both employer and employee. Contact us if you are experiencing issues with staff sickness absence, or are considering the need for a settlement agreement.