Managing sickness absence is a notoriously thorny issue for employers. As such, they must tread carefully as anything less than a sensitive and considered approach may expose them to potential claims for unfair dismissal or disability discrimination, where the sickness relates to a disability.
In many cases, employees will return to work without issue shortly after their first day of absence. Nevertheless, employers should closely monitor sickness absences and maintain appropriate contact with employees to discuss their wellbeing, expected length of absence and any work to be covered.
However, in some cases, absences may be persistent or prolonged. In these circumstances, employers should consider obtaining medical advice through an occupational health referral. These referrals can help to establish the extent of an employee’s condition and the possibility of them returning to work, as well as any adjustments or support which could assist their return.
If a return to work is possible, a return-to-work meeting should be arranged to agree a plan moving forwards based on medical advice and to minimise the risk of future absences. This may involve a discussion about specific timeframes and precisely how any adjustments will be implemented. In addition, in respect of disabled employees, it will help the employer discharge their duty to make reasonable adjustments under the Equality Act 2010.
On the other hand, it may be unclear whether a return to work will be possible in the foreseeable future. In these circumstances, employers should hold additional meetings with the employee to further explore the possibility of a return, their perceived ability to perform their role and any alternative options, such as redeployment into a different role.
If the employer still considers that the employee will not be able to return to work, they should convene another, final meeting with the employee to inform them of their potential dismissal and to seek their views. Any correspondence communicating a dismissal should be clear about the reasons for it and provide the employee with a right of appeal.
Ultimately, in order to minimise the risk of claims, employers should not act hastily. An employment tribunal will expect them to have taken a thorough and considered approach by obtaining medical evidence and meeting with the employee at each stage of the process. To this end, employers should keep a detailed paper trail of all correspondence and meetings, including with the medical practitioner.
Nicola Smyrl is a partner at Taylor Walton Solicitors
