Legal implications of long-term absence for employers and occupational health

How long is long-term absence? Well, there’s a lot of absence about, despite a substantial increase in the numbers of businesses implementing ‘wellbeing’ strategies. But while 80% of the current 8.4 days-a-year average sick leave is attributable to self-certifiable absence, the remaining 20% is long-term absence, and this accounts for 70% of the cost of sick leave.


Prevention is the key, but if that fails, the employer must consider how to deal with securing a return to work and, if that is not a realistic prospect, the permanent absence caused by termination of employment may soon follow.


Long-term goals


The employer needs to consider the long-term consequences of any illness that has the possibility for wider repercussions. Occupational health (OH) personnel can take proactive steps through analysing absence trends. Use of the Institute of Occupational Medicine Sickness Absence Recording Tool will, in the unfortunate event of litigation, be evidence of best practice in identifying patterns of the past as a basis for prevention in the future.


While the employer has a duty to provide a safe place of work, OH personnel are key players in designing programmes and strategies for ensuring the prevention of work-related accidents and illnesses through risk assessment. Adequate steps must be taken to avoid the foreseeable risk of injury.


In assessing risk, physical and psychological factors are of equal importance and the overlap between the two should not be under-estimated. The 1990s epidemic of work-related upper-limb disorders prompted concerns that there was a psychological overlay to physical symptoms that should have resolved when the precipitating factor was removed. That epidemic has since been followed by the current tendency for people to become ill because of work-related stress.


Those involved with the medical symptoms induced by stress are often puzzled by the continuance of symptoms when the patient is removed from the stressor (work) and on long-term sick leave. The answer to that problem can only lie in a thorough investigation into the stress factors and giving adequate assurance to the sick employee that there will be a return to a safe system of work. That will involve discussions with the employee and could include training for the parties who may have been involved in causing the stress in the first place.


Managing the absence period


From the employer’s perspective, managing the absence period means getting the employee back to work. Even after all the risks have been minimised, that is not necessarily going to be easy. The employer is required under the Health and Safety at Work Act 1974 and at common law to keep a safe place of work.


No place of work can be entirely free from risk. However, employers should look out for risks that are reasonably foreseeable and take steps to reduce them or warn the employee not to take avoidable risks.


Even if absence has been caused by a physical factor, whether or not work-related, the stress of returning to work should not be under-estimated, as it is not uncommon for psychological illness to follow a physical injury. So the employer must be aware of its responsibilities before putting pressure on the employee to return to work.


Alarming tendencies


The arrival of a long-term medical certificate flags up human resource management concerns: a doctor authorising a defined period of absence of four weeks or more sets the employer’s alarm bells ringing. And they can ring sooner and louder when the medical condition is for a stress-related illness, anxiety or depression.


These psychological illnesses will not have the defined recovery period of a broken ankle or a bout of German measles. Further, they are conditions which may require complex psychotherapeutic interactions, often arranged through the employer’s resources, to promote recovery and facilitate return to work.


Although there is no statutory duty requiring an employer to rehabilitate a sick employee into the workplace, regard should be had for the possible implications of the Disability Discrimination Act 1995. Is the condition likely to be long-term? Will it affect normal day-to-day activities? Should the employer be considering reasonable adjustments to get the employee back to a safe place and system of work? And is it good employment practice to make reasonable adjustments even if the criteria for disability have not been established?


The fact of the absence and a long-term certificate should point the employer to consideration of the question of disability and potential adjustments in which it would be helpful to have input from the employee. In Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664, for instance, it was held that failure to consult is not of itself a breach of the legal duty to make any adjustments, although it is something which any sensible employer should do.


Certified warning


The trigger point for the employer’s concern will be the length of the certified absence, especially when the original certificate becomes the first of a series. The employee is cushioned from the financial consequences of the illness either by contractual sick pay or by statutory sick pay. And although there is no absolute definition of long-term sickness absence, it’s long when either form of sick-pay runs out.


In the former event, there will be a limited period during which full or part-salary is paid. Some companies provide permanent health insurance which, after a long period of absence and with no foreseeable prospect of a return, pays the employee a proportion of their last level of salary for a defined period or the period of their disability up to retirement age. Statutory sick pay runs out after six months and other statutory benefits may then apply if the employee continues to be unfit for work.


Permanent health insurance is paid to an employee who remains in employment. If the employee is dismissed, they are no longer eligible for the insurance benefit. However, the dismissal of an employee in receipt of benefits under a permanent health insurance scheme may constitute a breach of contract.


In Aspden v Webbs Poultry and Meat Group (Holdings) Ltd [1996] IRLR 521, Mr Aspden’s contract contained two important clauses. One gave him the benefit of a permanent health insurance scheme as long as he remained a company employee, but was prevented from working by reason of sickness or incapacity. The other clause, concerned the employer’s right to terminate the employment after six months of ill-health absence.


The court held that there was an implied term that, unless Aspden committed gross misconduct, he would not be dismissed while benefiting from the insurance scheme. His contract was found to have been breached by the dismissal.


Although it is essential for the employer to know whether the employee is improving and whether the employer can assist in the recovery process, many staff on long-term sick leave do not want to take part in any interaction with the workplace. Even so, provided that the proposed interactions are suggested politely and carried out sympathetically, the employer should arrange for visits to assess the prospect of return to work, arrange for counselling if that would assist the process, and take any other necessary steps to ease the way back to work.


Fair procedures


The employer may be contemplating dismissal but, to ensure fairness, it is virtually mandatory that there should be a proper medical report disclosed to the employer, a due process of consultation should take place with the employee (who should be accompanied at any meeting) and the possibility of a change of job structure or role should be considered.


The contract may – and, ideally, should – provide for the employee to agree to undergo a medical examination at the company’s expense by a doctor appointed by the company. And refusal to comply with a contractual obligation could be a disciplinary offence warranting dismissal in its own right.


The employee has the right to see any medical report under the Access to Medical Reports Act 1988 and to point out any perceived errors so they will not be disadvantaged in any way.


If the employee refuses to have a medical examination, the employer should warn them of the risk of dismissal. However, there remains a risk of the dismissal being unfair if it cannot be shown that the employer simply could not wait any longer for the employee’s return. These days, there are temporary workers or people prepared to take short-term contracts who could fill the absentee’s place, so there must be a good reason why that cannot be done.


Getting it right


The employer should not simply rely on warning the employee that their job is at risk unless they manage to return to work. The courts still rely on the agenda set out in Lynock v Cereal Packaging Ltd [1988] IRLR 511, which stated that employers should take account of:




  • the nature of the illness


  • the likelihood of it recurring or of some other illness arising


  • the length of the various absences and the periods between them


  • the need for the employer to have the work done


  • the impact of the absences on other employees


  • the importance of a personal assessment of the situation


  • the importance of consultation with the employee


  • the importance of appropriate warnings of dismissal if there is no noticeable improvement.

Add all that together, and mix in the consideration for disability implications and the current ethos of aiming for a return to work with reasonable adjustments, and you could end up with a happy ending.


Casebook


Tel Corporation (UK) Ltd v Daw (2007) IRLR 355


Ms Daw suffered from post-natal depression, but management left her floundering with easily correctable work-related difficulties on the basis that she needed medical treatment. It provided counselling and medical assistance, but did not make obviously needed changes to the system of work. The Court of Appeal held that the employer did not discharge the duty of care sufficiently: “Although there will be cases in which an employee may be expected to take refuge in counselling services, in the present case the claimant, a loyal and capable employee, pointed out the serious management failings which were causing her stress and the failure to take action was that of management. The consequences of that failure were not avoided by the provision of counsellors who might have brought home to management that action was required.”


Corr v IBC Vehicles Ltd [2006] EWCA Civ 331


This was a widow’s claim for damages arising from her husband’s suicide after a serious accident at work. Mr Corr, previously a happily married man of a cheerful disposition, was injured by reason of the employer’s negligence in the course of his employment. He suffered severe head injuries when a piece of equipment malfunctioned. He underwent a series of operations, but his recovery was complicated by severe post-traumatic stress disorder. Six years after the accident, he was hospitalised after taking an overdose of a drug. Within weeks, he was pronounced at significant risk of suicide. Within three days of the subsequent diagnosis of severe anxiety and depression, he committed suicide. The court held that the depression was a foreseeable consequence of the employer’s negligence. The evidence established that it was the depression that drove Corr to commit suicide and the employer was, therefore, liable for his death.


Linda Goldman is a barrister at 7 New Square


Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar.