How should employers deal with employees’ short and long term absences?
As we enter into the winter season, generally speaking, bugs, colds and viruses affect employees’ health and their fitness to work. In most cases, an employee who becomes unwell and needs time off work for these reasons will be able to return to work after a relatively short period of absence.
Short term absence
When dealing with short-term absence, an employer should ensure that both they are their employee are complying with the employer’s sickness absence policy.
Long term absence
If an employee has an underlying health condition which is impacting their ability to carry out their work and has caused them to be away from work for long period of time, employers should act with caution before taking steps to end their employment. If the employee’s condition is likely to meet the test for a “disability” in law, they will have enhanced rights and protection from being discriminated against at the workplace as a result of the same.
What is the definition of a disability in law?
Section 6 of the Equality Act 2010 defines a disabled person as being someone who has a “physical or mental impairment” which has “a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. It is important to note that this is a legal test, which can only be answered definitively by an Employment Tribunal Judge, albeit medical evidence is a helpful steer for employers to consider when managing the risk.
What should an employer do if an employee has a disability?
Should an employee meet the criteria for having a disability in law, the employer has a legal obligation to make reasonable adjustments to remove any negative impact that an employee’s medical condition has on their ability to carry out their role. Further, if an employee has more than two years’ service, they also have recourse under ordinary unfair dismissal law, meaning that, before their employment comes to an end, their employer must (i) have a potentially fair reason in law for dismissing them and (ii) follow a fair and proper process prior to doing so.
Depending on the nature and background of the medical condition and, importantly, the employee’s ability to engage in the process, it may be beneficial in these cases for an employer to consider whether independent medical – usually in the form of occupational health – advice should be obtained. Prior to doing so, the employer should (i) consider whether they need the employee’s consent to make a referral and (ii) approach the matter supportively and explain to the employee the purpose of the referral. The employer will also have to fulfil their statutory obligations under the Access to Medical Records Act 1990 in making such a referral. The advice from the medical or occupational health practitioner should provide both the employer and the employee with a better understanding of the employee’s health condition, how it impacts on their ability to carry out their duties and if/when they may be able to return to the workplace, with or without adjustments.
The importance of communication
For both employers and employees, where possible, it is important that there is an agreed, level of communication between the parties. Long-term health issues are not straightforward to manage. As such, if you are an employer or an employee who would like legal input on a situation related to long-term ill health at the workplace, please do not hesitate to contact our team of employment law experts who can guide you further.
This update contains general information only and does not constitute legal or other professional advice.
Pauline Hughes, Solicitor: pah@bto.co.uk / 0141 221 8012 / Connect with Pauline
