How can employers support persistently unwell employees?

Whether it is an employee who is partying too hard, a smoker with a series of coughs and colds or a diabetic who is failing to manage their condition properly, these health and lifestyle choices can seriously affect performance and even the safety of those around them.

Unhealthy burger

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  • A robust health and wellbeing programme can raise health awareness among employees and reduce the risk of poor health choices affecting the workplace.
  • Where an employee is regarded as disabled, an employer must consider making reasonable adjustments to ensure they are not unfairly disadvantaged.
  • Extreme obesity, where an individual’s body mass index is in excess of 40, could be classified as a disability following a recommendation by the advocate general of the European Court of Justice.

Take alcohol as an example. While many employees struggle into work with the occasional hangover, drinking results in the loss of as many as 17 million working days each year and is a factor in a quarter of the accidents recorded by the Health and Safety Executive. Paul Avis, marketing director at Canada Life Group Insurance, says: “All sorts of health and lifestyle problems can affect the workplace, causing tough legal and moral issues for employers. To minimise the damage, employers need to establish ways to deal with these cases.”

Setting standards

First, it is essential to determine what is acceptable behaviour in the workplace. Having policies in place underlines the organisation’s approach to employee health and performance issues and, because it helps to formalise standards, will make it easier to deal with any problems relating to health and lifestyle choices.

Central to these policies should be a description of acceptable workplace behaviour in the staff handbook. This will outline what is expected from employees as well as establishing triggers for sickness absence interviews and laying out health and safety policies such as the organisation’s position on alcohol.

In addition, because most employers will look to support, at least initially, an employee whose performance may be suffering, it is also sensible to establish best practice in this area. there is plenty of information available for employers and line managers looking to do this. “Advice on how to deal with different issues is available from occupational health providers, employee assistance programmes and the helplines available on group risk products,” says Avis. “This can detail the support available to employees, as well as the actions the employers should take.” 

For example, where an employee’s smoking habit is affecting their health, an employer might want to offer a smoking cessation programme or provide access to healthy-eating options to someone struggling with their weight.

Having a health and wellbeing strategy in place is also sensible. Richard Colver, head of healthcare and wellbeing at JLT Employee Benefits, explains: “Providing employees with health education shows you care as an employer but can also provide the encouragement for an employee to make the necessary changes if their health or lifestyle choices are affecting performance.”


Legal steps

But, while some employees will respond well to this support, employers also need to be aware of what to if they don’t, says Avis. “An employer can provide huge amounts of support but if an employee doesn’t want to change, and their performance is affected, disciplinary procedures may need to be considered.”

Legally, the approach an employer can take depends on what is affecting the employee’s performance. Where it is a lifestyle issue such as drinking or too many late nights, it is fairly clear cut, says Nick Thomas, partner at Morgan Lewis. “Employees have general protection from being unfairly dismissed once they’ve been an employee for two years, so it’s important to follow a fair process if [employers] do intend to dismiss an employee,” he explains.

Where there is a health issue underlying an employee’s impaired performance, although they can still be dismissed, the situation becomes more complicated. In particular, if they qualify as disabled, they will gain additional protection under the Equality Act. This means an employer would need to make reasonable adjustments to ensure the employee is not unfairly disadvantaged in their job. “The courts have given this a very broad interpretation,” adds Thomas. “I’d recommend an employer taking both legal and medical advice to ensure it acts as fairly as possible.” 

Disability diversity

The other concern for employers is exactly what falls under the Equality Act. While it describes a disability as “an impairment that is either physical or mental with substantial adverse and long-term effects on ability to carry out normal day-to-day activities” , what falls under this is constantly evolving. 

As an example, take the ruling from the advocate general of the European Court of Justice. This relates to a case brought by Karsten Kaltoft, a Danish childminder, who was dismissed by his employer, Billund City Council, in 2010. He argued that his obesity – he weighed more than 160kg during his employment – was part of the reason for his dismissal and that this was unfair discrimination.

In response, the advocate general stated that although EU law did not prohibit discrimination specifically on the grounds of obesity, where an individual’s body mass index (BMI) was in excess of 40, this could be considered a disability.

Whether or not the court upholds his recommendation, and it is fairly common for it to do so, employers need to be aware of the diversity of disability when dealing with employees. “There are some pretty esoteric conditions, especially under mental health, that could be regarded as disabilities. We could even see internet addiction being classed as a disability in the future,” Avis says.

As the legal position around this evolves, having formal procedures in place coupled with support to encourage employees to make the right health and lifestyle choices will help to ensure the workplace remains a healthy one.

Making reasonable adjustments – case law

When it comes to making reasonable adjustments to accommodate employees under the Equality Act, employers should bear in mind the following cases.  

  • Archibald v Fife Council

Ms Archibald was employed by Fife Council as a road sweeper but after complications during surgery, her ability to walk was seriously affected. She unsuccessfully applied for more than 100 office-based posts within the council and was dismissed on grounds of incapacity. However, the House of Lords ruled that the council had acted unfairly and that reasonable adjustments should include transferring an employee to another role, even at a higher grade.

  • Chief Constable of South Yorkshire Police v Jelic

Milorad Jelic developed chronic anxiety syndrome while employed as a police constable with South Yorkshire Police. After being advised to return to work on reduced hours in a non-confrontational role, he was given a role in the Safer Neighbourhood Unit. However, when the unit’s duties started to include more customer-facing activities he was retired due to ill-health. The court ruled that reasonable adjustments included finding another role for Jelic, including a job swap if no vacant role was available.   

UK obesity problem infographic

Source: Statistics on Obesity, Physical Activity and Diet, England 2014, Health and Social Care Information Centre