Legal

What to consider when managing employee ill-health

8 Feb 2019 By Jackie Thomas and Helen Roberts

Dealing with sickness absence is tricky, but employers can take several positive steps, say Jackie Thomas and Helen Roberts

Employee sickness absence can have a significant impact on businesses – affecting performance, productivity, workload and morale. Managing sickness absence also requires a high degree of sensitivity and flexibility, making it one of the trickiest issues for employers to handle. 

Managing employees affected by ill-health

Not all sickness absence can be treated in the same way. Determining the best course of action will depend on whether the absence is long-term or short-term, as well as the nature of the illness and the role of the individual concerned. Keeping accurate absence records can assist an employer in identifying issues early on. It is also helpful to maintain clear sickness absence policies to ensure that employees are aware of expected standards of attendance and that managers can deal with absences effectively.

Where absence is long-term, it is advisable to keep in regular contact with the employee (unless medical advice indicates otherwise). GP ‘fit notes’ tend to provide limited information about an employee’s condition, but occupational health specialists can provide advice for employers who wish to understand an employee’s medical issues and the impact on their role. To get the most value out of such providers, employers should ask specific questions tailored to the individual employee.

In some cases, it may be appropriate to consider a phased return to work. For this to be most effective, it is important to agree the terms of the return with the individual with the support of occupational health, and to ensure relevant colleagues are given the support to deal with any impact this may have on them.

When absence becomes unmanageable

If absence issues cannot be resolved through informal methods, the employer may have no choice but to follow a formal capability process. Actions such as a formal warning or dismissal should only be implemented following a proper procedure in line with the Acas Code of Practice – this will also reduce the risk of claims such as unfair dismissal or breach of contract. Employers should also consider whether changes are needed to the process; for example, it may be appropriate to hold meetings at a neutral venue or even at the employee’s home.  

Making reasonable adjustments

Crucially, employers should always consider whether the employee’s absence is due to an underlying medical condition that could amount to a disability under the Equality Act 2010.

If the employee is disabled, the employer has a duty to make ‘reasonable adjustments’ for the employee’s disability. In practice, this could include a wide range of changes, from installing standing desks for employees with back issues to agreeing to flexible working arrangements to assist with mental health issues. Again, occupational health can help identify what adjustments may be appropriate. It is, however, worth noting that adjustments are intended to help a disabled employee stay in work, meaning that generally it is not a reasonable adjustment to offer additional sick pay.  

Making reasonable adjustments is good practice, as well as being key in avoiding disability discrimination claims. Compensation for disability discrimination is uncapped and as disabled employees can find it difficult to secure alternative employment, successful claims can lead to very high awards of compensation. 

To tackle ill-health issues, increasing numbers of employers are taking positive and creative measures to maintain and improve the health of their employees. In addition to offering benefits such as paid gym membership, some are going the extra mile to encourage employee wellbeing by arranging yoga and mindfulness sessions, handing out healthy snacks and organising office fitness challenges. Such employers hope these positive steps will reduce employee absence and contribute to the overall wellbeing of their staff.

Jackie Thomas is a senior associate and Helen Roberts an associate at Bryan Cave Leighton Paisner LLP

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