Managing long-term absence

Mar 14, 2024 | Information

We recently delivered a seminar aimed at updating employers and HR professionals on the changes in employment law. Sickness absence management was a key focus of this seminar, as we have seen a number of queries on the subject and a tendency for errors being made.

Nearly three years after the onset of the first UK lockdown, the Covid-19 pandemic is still having a huge influence. Whilst life is returning to some sort of ‘normality’ and the threat of the virus has diminished, there is now much wider recognition for the importance of health. This is having an impact on employers, who need to be properly equipped to prioritise the health of their employees and deal with sickness absence appropriately.

The Office for National Statistics published data in January 2023 stating that 2 million people reported symptoms of long covid, symptoms which can affect people both mentally and physically. As a result, long covid could be classed as a disability under section 6 Equality Act 2010, and there have been some employment tribunal decisions in support of this. Accordingly, employers must be cautious of the risk of discrimination claims before making any hasty decisions on how to deal with employees who are off sick.

On a general level, all employers should have a clear policy on dealing with sickness absence within the Staff Handbook, ideally with separate sections for short term absence and long term absence. It should be clear on how an employee must notify and certify their absence, their entitlement to SSP/company sick pay, and what they will be asked to do upon return to work e.g complete a certification form or attend a return to work meeting. Employee absence costs a shocking median £798 per employee per year and so it is essential to plan in advance how you will deal with absence in the interests of the business.

Should issues arise in relation to long term sickness, whether that be covid related or otherwise, you should firstly ensure that you are maintaining regular contact with employees and providing support where possible. You need to be able to understand the condition an employee has in order to comply with your potential duty to make reasonable adjustments. Obtaining Occupational Health reports is a good way to gather information on an employee’s prognosis, however you must not wholly rely on these. A number of tribunal verdicts have gone against the advice of OH reports, as the test for disability is a legal one rather than a medical one. Ultimately, you should endeavour to gather as much information as possible and seek legal advice on the specific circumstances.

Unfortunately, despite offering support and adjustments, in some cases it may still not be possible to facilitate an employee’s return to work. In such circumstances, you may consider ill-health retirement, dismissal on the grounds of capability, or engaging in protected conversations with a view to negotiating a settlement agreement. Any steps taken should be done so with caution, following the correct procedure is crucial to limiting your exposure to Tribunal claims. 

Settlement agreements are a really useful tool in allowing the parties to part ways, and when done right they can achieve a suitable outcome for both employer and employee. Please seek our expert advice if you are experiencing issues with staff sickness absence, or are considering the need for a settlement agreement.