Reviewing your long-term sickness policy - Quick reads - Gateley
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Reviewing your long-term sickness policy

Gateley Legal

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Managing long-term sickness can often be regarded as one of the most difficult tasks. However the establishment of an appropriate absence policy and its application to all employees has been seen to improve attendance and reduce Employment Tribunal claims in most organisations. So what are the key issues to consider when introducing or reviewing a long-term sickness policy?

Communicating the policy's purpose and scope to line managers and employees

Managing long-term sickness absence is all about giving an employee the time to recover from illness or injury, which may be a slow process; and minimising the damage to efficiency and productivity that can be caused by an employee being off work indefinitely.

It is important that the workforce are made aware of the purpose of the long-term sickness absence policy and that they understand the need for the employer to balance the welfare needs of the individual with the impact of the absence on the business and their colleagues. The explanation will help the employees’ acceptance and compliance with the policy and will also help management administer it. The policy can make clear that the organisation will consider dismissing an employee on long-term sick leave only after it has made all reasonable attempts to support their return to work.

The introduction to the policy can also set out what counts as "long-term sickness absence" and when the employer's separate short-term sickness absence policy applies. In this regard whilst there is no strict definition that has to be applied it is common from experience that employers define long-term sickness absence as illness that lasts longer than one month.  
Training in dealing with long-term sickness may be required. The expectations of both managers and employees should be made clear. Line managers and employees should be told that it is the responsibility of both to keep in touch during long-term sickness absence.

Line managers should be reminded of the importance of seeking medical advice where appropriate; and the potential for discrimination, particularly where the employee's ill health is related to disability or pregnancy. Stress the importance of keeping in touch with the employee - with long-term sick leave it is absolutely essential. While there is no "one-size-fits-all" approach to keeping in touch, the policy can set out some trigger points for contact and the minimum expectations.

It is a good idea for the employee's line manager to contact the employee after the first month of sickness absence to agree the method and frequency of contact. In any event continued contact should be on a regular basis and at least monthly.

Employees should be encouraged to contact their employer following any update on their medical condition. Contracts or sickness procedures often specify that the employee may be required to attend a medical examination if they have been absent for a specified period of time, for example, six weeks. However, even without such provision, an employer should actively seek an update on the medical position. The onus is on the employer to request updates, not on the employee to provide them.

Set trigger points of absence levels

The long-term sickness absence policy should have a system of trigger points for formal review meetings to take place.

For example, the stage 1 trigger point will occur after an employee has been absent for 28 days. At that point, a stage 1 long-term sickness absence meeting could take place.
Stage 2 long-term sickness absence meetings could then take place at three-month intervals.
If the employee is still off after 6/12 months, a stage 3 long-term sickness absence final formal review meeting could take place.

This is important to ensure that employees are treated the same and that management do address any absence problem in a uniform way. If an employee on long-term sick leave is given a warning or dismissed at any point, it is important that they can appeal against this decision.

Medical evidence

For sickness lasting longer than seven calendar days, medical evidence is required, normally in the form of a doctor's fit note, also known as a "statement of fitness for work".
The policy should set a point at which employees are referred to occupational health or for a further medical report from another source.

When dealing with long-term absence a report may need to be obtained from more than one health professional in order to establish the true medical position and have an indication of when or if the employee will be able to return to work.
The source of this medical evidence may include:

  • The employee's GP 
  • An occupational health physician
  • A doctor retained by the employer 

The onus is on the employer to take reasonable steps to ascertain the medical position, rather than the onus being on the employee to volunteer medical information beyond the duty to submit sick notes. 
However in a claim of unfair dismissal it has been established that in investigating the medical position, an employer should be judged by the standards of the reasonable employer, not by the standards of whether it left no stone unturned. 
The medical opinion can be taken at face value, unless a reasonable employer would not have relied on a report of that nature. 

Whether the medical evidence is clear or not it will be important to always consult with the employee rather than relying solely on the expert's opinion. The decision to dismiss will be a managerial one rather than a medical one. While the views of experts will help they should not dictate the outcome.

Discussion and consultation with the employee will often bring to light facts and circumstances of which the employer was unaware, which will throw new light on the problem.
It should be made clear that where an employee refuses to co-operate with an employer's request to obtain medical information, they may be dismissed fairly based on the evidence available.

Sick pay entitlement

Employees on long-term sick leave must be told about their sick pay entitlement. The majority of employers offer some form of enhanced contractual sick pay that is more generous than the statutory sick pay scheme. 
However as a minimum the employee will be entitled to statutory sick pay which is paid at a flat rate, for a maximum of 28 weeks in any one period of incapacity for work.

If a more generous sick pay arrangement is in place it will be important to set out the number of weeks' contractual sick pay that the employee will be entitled to receive. Unlike the statutory sick pay scheme this often increases with the employee’s length of service. For example an employee may only be entitled to receive full pay for one week of sickness absence during their first year of employment. This may increase in some cases to six months of full pay where the employee has worked for the organisation for a number of years. 

It may be that the point at which enhanced sick pay runs out will act as an incentive to employees on long-term sickness absence to return to work. In some cases it has been claimed that an employee who is absent due to disability should have the right to receive extended sick pay entitlements. However as a general rule it will not be a reasonable adjustment to extend rights to full pay for a disabled employee on long-term sickness absence mainly because it does not assist the employee return to work which would be a relevant factor in assessing the reasonableness of an adjustment. 

Set out sickness and holiday absences are treated differently

Long-term sickness absence raises the problem area for employers of an employee accruing large amounts of untaken annual leave.

The long-term sickness absence policy should address the following points in particular:

  • Whether workers should be allowed to reschedule a period of sickness-affected statutory holiday
  • Whether workers can insist on taking paid holiday during a period of long-term paid or unpaid sick leave
  • Whether workers who are, or have been, on sick leave can carry over untaken statutory holiday to the next leave year, or even to subsequent leave years

In making provision for these issues it must be remembered that under the Working Time Regulations 1998 and the EU Working Time Directive statutory minimum periods of leave have special protection. 
The policy may restrict accrual of annual leave to the statutory minimum if the absence lasts over a certain period of time or may limit the amount of accrued annual leave that can be carried over but the policy cannot exclude rights to paid holiday and limit accrual below the statutory minimum.

Return to work plans

When an employee is returning to work following long-term sickness absence, their line manager should arrange to meet informally with them. Ideally, the return-to-work interview will take place prior to the employee's return to work, to allow time for any necessary adjustments to be made to the employee's working arrangements and conditions. 

If this is not possible, the interview should take place on the employee's first day back at work. It is vital that what is discussed and agreed during a return-to-work interview is followed up. For example, it could be followed up with a catch-up meeting at the end of the employee's first week back at work. The return-to-work interview should take place in a private room, and all discussions between the employee and the manager should be private and confidential.

Where an employee has been on long-term sickness absence, a phased return will often be the most successful way of returning him or her to work.

A phased return to work allows an employee to transition from ill-health absence back to full (or sometimes permanently amended) work duties. A phased return to work could involve a gradual increase in hours, or an initial period during which the employee works from home on certain days.

The long-term sickness absence policy should explain when phased returns to work might be used for example when they are recommended by Occupational Health or a doctor in a fit note and the process that will be followed.

The exact arrangements will usually involve a meeting between the employee, his or her line manager and occupational health/HR. The pay arrangements during this period will need to be made clear too, For example will the employee be paid just for the hours worked. It may be an option for the employer to move someone who has been on long-term sick leave temporarily to a different role.

The policy could therefore have a built-in option to allow the employee's line manager to consider whether or not a different role is available within the same department. Alternatively, the search for a temporary role could be widened to other departments.

The employee's existing rate of pay should generally be protected during the temporary reassignment – although this should be kept under review. If the assignment looks to be permanent the pay may need to be adjusted. In that regard permanent redeployment may be an option where it appears unlikely from medical advice that an employee will be able to return to his or her existing role, the employer could consider redeployment. Should the employee accept permanent redeployment, they should be asked to agree to a variation of contract.

Provisions to reduce risks in special cases

In order to avoid or reduce the risk of a discrimination claim the long-term sickness absence procedure should make special provision to treat absences related to disability and pregnancy-related illness differently.

When managing a disabled employee's absence, employers should be on high alert to the risk of a claim for discrimination arising from disability under the Equality Act 2010. To dismiss a disabled employee or give them a warning for poor attendance may amount to discrimination arising from disability.

However that does not mean a warning or dismissal would never be justified. There will come a point where the employer will be justified in issuing a warning or even dismissing even if the absence is caused by a disability. The balancing test between the discriminatory impact of dismissal and the legitimate aim of requiring employees to attend work will have to be considered on the facts in each case. In this regard the prospects of the employee being to return to work will be an important factor. 

The safest course is to exclude absence that is pregnancy related when tallying an employee's sickness absence record for the purposes of managing absence as this will be of a temporary nature. Again there is the possibility of showing treatment is justified but this will be difficult.

If a return to work looks impossible then the long-term sick policy should provide that where appropriate retirement on the ground of ill health will be considered. Of course this will be limited to situations where not only is it unlikely from the medical advice that the employee will be able to return to his or her role but also that he or she is entitled to a pension or lump sum under his or her pension scheme.

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