Long term employee absence is one of the trickiest areas of the employment relationship for employers to tackle. On the one hand you wish to ensure that you are fair and reasonable to an employee who is suffering significant ill health, but on the other you have a business to run and other employees who are being adversely impacted.
How then should you look to tackle this?
How Long Is ‘Long Term’
Firstly it is necessary to consider what we mean by long term? Unfortunately there is no set period defined in the legislation and we therefore fall back on the following;
- Can the employer be expected to wait any longer for the employee to return?
- Has a fair process been followed in all the circumstances?
Typically this will fall somewhere between 2 and 6 months absence depending on the size and resources of the business, the employee’s role and how easy it is to provide cover, their length of service and the nature of the illness (for example if it is a disability or a workplace injury the ‘fair’ period may be longer).
If an employee exhausts their sick pay entitlement (which lasts for 28 weeks) many employers will begin acting then if they have not taken steps before.
Can the Employer be Expected to Wait Any Longer?
This is a factual assessment which will vary in every case but will include consideration of the following factors;
- Whether other staff available to cover
- The nature of the employee’s illness
- The likely length of the employee’s absence
- The cost of continuing to employ the employee
- The size of the organisation
- The unsatisfactory situation of having an employee on very lengthy sick leave
- The negative impact on other staff and the business as a whole
A Fair Procedure
If you consider that your business cannot continue to wait any longer you must still follow a fair capability procedure. This would typically involve;
- Meeting with the employee to discuss their condition and treatment
- Obtaining medical evidence from the employee’s own doctor or occupational health
- Meeting again with the employee to discuss the medical opinion and recommendations and to explore what, if any, adjustments can be made to facilitate the employee’s return
If after consideration of the options it is considered that the employee still will not be able to return, it may then be necessary to dismiss. If you do take this option then the employee must still be given their contractual notice and a right of appeal.
What if the Absence is Disability Related?
If the absence is disability related this does not automatically mean that you cannot still take steps to manage attendance and/or to dismiss the employee. It does however increase the risks involved to your business as any claims for disability discrimination are for potentially uncapped compensation. Having a disability however is not an absolute bar to taking action and employers should not be scared from tackling long term absence simply because the absence is or may be a disability.
If you are struggling with long term absence in your business, please do contact our Employment Team to discuss how we can help on 0345 646 0406 or by using our online enquiry form.