Long term sickness absence

Richard is the owner of a company which makes gardening equipment. The company has forty employees, the majority of which are long-serving. Unfortunately, Peter has been off sick for five weeks and has been admitted to hospital whilst undergoing medical assessment. Richard’s understanding is that it mat be cancer.

Richard is very concerned about Peter and presently he has agreed to continue paying him his normal pay rather than statutory sick pay (SSP) to take any financial worry of his mind. During Peter’s absence a temporary member of staff has been recruited to help cover his work but the extra cost is now becoming a real issue.

Richard is concerned about reducing his pay now when his medical condition is still unknown. However, he doesn’t want to make things worse for Peter by causing financial worries over his pay. At present Richard has no information as to when, or even if Peter can return and as a result he is unsure as to what to do in the circumstances and what the legal implications are for the employee and the business.

Employee long-term sickness absence is a difficult issue. It can impact on staff if a close work colleague is ill and there are financial implications in respect to their pay and employment in general.

In respect to pay the answer depends on what the business does in times of employee absence in respect to pay. An employee‘s contract should explain the contractual situation, but also a business may have a history of always paying staff full pay in times of absence, which can raise the spectre of an entitlement (in certain circumstances) for staff to receive full pay. Statutory Sick Pay is payable up to a maximum of 28 weeks’, subject to eligibility requirements. An employer can always use their discretion if they so wish, but it should be borne in mind that this can create a precedent that staff may seek to impose.

In respect to the legal rights of an employee in such a situation it depends on whether or not the employee is deemed as disabled under the Equality Act. Its is likely that if Peter is diagnosed with cancer he will be deemed as disabled (the test is fact specific and depends on the individual’s circumstances).

If in time Peter is able to return to work then Richard will need to avoid making any assumptions about Peter’s ability to work and base any decisions about their employment on medical opinion in consultation with the employee. Richard will need to consider whether there are any adjustments that can be reasonably made as part of that consultation.

If someone remains off sick for an extended period then an employer may need to consider termination of their employment on medical capability grounds. This may be because a replacement is needed. As a business needs to continue to satisfy its clients this is a reasonable option provided that it can be substantiated as a “fair” reason for dismissal. It is essential professional legal advice is sought and an appropriate procedure is followed before dismissing your employee. This would include obtaining a medical report or reports, discussing the possibility of a return to work with your employee throughout a period of consultation, and ensuring that termination is the only real option in the circumstances.

Unfortunately, this area of the law is fraught with danger and an employer must ensure they do not rush and process and consider every alternative before dismissal is decided.

Please feel free to contact us for further advice.