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According to the BBC, the number of UK workers on long-term sickness leave has hit a record high with over 2.8 million individuals affected.
This is increasingly attributed to mental health issues among young people, back and neck pain likely caused by remote work, and an increase in post-viral fatigue with potential links to long covid. Since the start of the pandemic, over 400,000 more people have left the labour market due to ill health.
In this blog, I cover the issues of long-term sickness in the workplace, and how best to handle it as an employer.
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What classes as long-term sickness leave?
Long-term sickness is when an employee is unable to work for an extended duration due to health-related issues, be it physical or mental. To class as long-term, an employee is typically absent for 4+ weeks.
Employees on long-term sickness leave are legally entitled to statutory sick pay for a maximum of 28 weeks. At the time of writing, statutory sick pay is £116.75 per week to be paid by the employer.
Some companies choose to implement their own sickness policies and benefits at their own discretion.
Why is long-term sickness an issue?
There are wider concerns on a national level about labour shortages caused by long-term sickness. Policymakers aim to tackle this problem and take steps to reduce long-term sickness and support economic growth.
Not only does long-term sickness affect the country as a whole, but it can hugely impact businesses and limit the possibility of expansion opportunities.
Let’s say you are an employer. Your expansion plan is ready, and you’re on the cusp of executing it. However, you are currently paying several employees on long-term sick leave.
On top of their wages, you’ll have to pay for their replacements, plus the resources to train them. This can lead to significant disruptions to workflow and finances, thus draining valuable business resources.
Long-term sickness can also be a very trying time for the employee affected. Having long periods off work can hamper their professional development, interrupt learning, and most commonly, leave them feeling extremely isolated.
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Why do employers not dismiss employees on long-term sickness leave?
Employers often find themselves in a balancing act between protecting employees’ welfare and prioritising business needs. This can lead to some tricky decision-making when considering the dismissal of an employee on long-term sick leave.
You may be thinking, “But, why?”. The reality is that it’s often a more complex process than it seems on the surface.
Some reasons why employers don’t dismiss a long-term sick employee, include:
- The employee on long-term sick is having such an awful experience that employers feel a dismissal would be a huge detriment to their health and recovery journey.
- A long-serving employee is on sick leave, and the company feels that their loyalty and contributions outweigh the reasons for dismissal.
- The company doesn’t have a HR department or anyone else experienced enough to handle the dismissal confidently and legally.
- Worries about the risks of a potential legal case.
- Distrust towards the Employment Tribunal due to the common belief that they don’t understand the genuine needs of a business and are therefore often in favour of the employee.
If you as the employer are concerned about the legal implications of dismissing an employee on long-term sickness, it is still possible, provided you have an adequate reason.
How can I dismiss an employee on long-term sickness?
Under the Employment Rights Act 1996 (ERA), it is true that an employer can potentially face liability if they dismiss someone on long-term sick leave.
The ERA recognises that there are some fair reasons for dismissing employees. One prominent example of this is capability.
An employee’s capability covers lots of factors including skill, aptitude, health, physicality, and mentality.
Suppose you dismiss an employee for capability and they bring forth a claim. In that case, the Employment Tribunal will look at whether you followed a fair procedure and whether the dismissal was reasonable.
In doing so, they will consider the following circumstances:
- Size and administrative resources of the employer
- Nature of the employee’s illness, the prospects of the employee returning to work, and the likelihood of the recurrence of the illness
- The need for the employer to have someone doing the work
- Effect of the absences on the rest of the workforce
- Employee’s length of service.
Due to these complexities, employers should take legal advice before attempting to dismiss an employee on long-term sickness.
Can I make someone on long-term sickness leave redundant?
Employers may find that when their employee is off sick, the demand for work decreases or a reshuffle of jobs identifies that their role isn’t necessary.
Whilst it is possible to make a long-term sick employee redundant, you must tread carefully and only follow this route if it is completely necessary for the business.
It is better practice to offer them a revised or different role and make reasonable adjustments before considering redundancy.
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What are my employee’s rights relating to long-term sick leave?
When on long-term sickness leave, employees are entitled to:
- Statutory sick pay if eligible
- Take annual leave during or after their leave
- Carry over up to 4 weeks of unused annual leave
- A return-to-work meeting and plan
- Reasonable adjustments from the employer to allow them to return to work.
As the employer, you have the right to receive a ‘sick note’ or ‘fit note’ from a suitable health professional. This can help you legitimise their illness, forecast the length of leave, and plan what adjustments can help with their return.
How can I ensure my procedure is fair?
Most employers are well aware of the risks of battling in the Employment Tribunal. The biggest risk is to receive a claim of unfair dismissal or workplace discrimination.
Decades of case law show that a procedure typically constitutes as ‘fair’ when the employer takes the following steps:
1. Ascertain the up-to-date medical position
When an employee is on long-term sickness leave, you should maintain an appropriate level of contact with them about the status of their recovery and obtain up-to-date information from medical professionals in the form of a ‘fit note’ or ‘sick note’.
Employers should only make decisions on dismissals once they know their employee’s position and whether it is suitable to proceed or wait for further updates.
2. Consult with the employee
In the vast majority of cases, consulting with the employee is central to the fairness of any dismissal. Failure to have a consultation will almost certainly mean the dismissal was unfair.
Anything an employee says could play both in favour and against a potential dismissal. If they say they want to return to work soon and are hopeful to recover, this will weigh against dismissal. However, if they say they’re still not okay and don’t know when they can return from long-term sickness, a dismissal may be reasonable.
3. Consider alternative employment
If it’s possible to offer the employee an alternative form of employment, you should do so. This isn’t always feasible, but it shows that you have acted fairly, and were left with no other choice.
What happens next?
Once you’ve followed the steps above and satisfied the Employment Tribunal that the procedure was fair, there is one final, critical hurdle. The Tribunal must believe that, in all the circumstances of the case, it was not reasonable for you to give the employee more time.
The answer to this, as you can imagine, will be highly fact-sensitive and depend on the availability of temporary cover (including its cost) and the organisation’s size.
How can we help?
Whilst it is possible to dismiss someone who is away on long-term sickness, you need to be careful. Each step will have hidden obstacles and nuances to overcome, each pertaining to your specific scenario.
Long-term sick leave can significantly impact an individual’s well-being, financial stability, and career. Compassion, understanding, and proper management are essential when handling instances of long-term sick leave.
We can help you follow a fair and legal process, assessing the situation from both points of view and offering tailored advice.
You can book a consultation with our employment solicitor by calling 0203 007 5500 or sending an enquiry to [email protected].
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