It will come as no surprise to HR professionals that employee absences because of sickness can be a significant problem for employers. Millions of working days are lost each year as a result of illness, costing employers hundreds of millions of pounds.
An employer has additional considerations when an employee is suffering from a disability. This is defined widely, as a “mental or physical impairment which has a long term adverse effect on their ability to carry out normal day to day activities”.
In those circumstances, the employer, regardless of how many employees it has, immediately acquires three additional duties: a duty not to discriminate against the disabled person, not to victimise them, and a duty to make reasonable adjustments for the benefit of the disabled person.
Most employers want to comply with these duties. However, a common problem is that they are simply too worried about invading employees’ privacy to investigate potential disabilities when they arise. While this may be understandable, it can have serious consequences.
Consider the following hypothetical example. An employee is intermittently absent from work. The employer does not want to pry and accepts the employee’s self-certification for headaches and tummy bugs at face value. But the absences increase, and the employee’s work colleagues stop covering for them. Eventually the employer loses patience, disciplines the employee and dismisses them summarily.
However, the employee brings proceedings at tribunal for unfair dismissal and disability discrimination. They win and are awarded compensation, and although compensation for unfair dismissal is capped by statute, the compensation for disability discrimination is uncapped and substantial.
What went wrong? Essentially, the employer was not fully informed before deciding to dismiss. It is always unwise to dismiss an employee who has been continuously or intermittently sick without finding out precisely what is wrong and what the prognosis is. Turning a blind eye to an employee’s difficulties at or absences from work out of a misplaced sense of prudery will never be the right reaction.
So, what is the correct practice?
Ascertain the root of the problem
The appropriate response to any lengthy or intermittent sickness absence is to get to the root of the problem by asking the employee and their doctor what is wrong.
Maintain regular (but not oppressive) contact with absent employees and conduct return-to-work interviews. If an employee is not absent from work but seems not to be coping as well as they had done the employer should check if they are ill or suffering from a disability.
Use tact and vigilance. Knee-jerk summary dismissal or disciplinary procedures are never the right response.
Review the employee’s employment contract
Any well-drafted employment contract should contain provisions that allow the employer to send the employee to an independent doctor who has access to the employee’s existing medical records. That doctor should then examine the employee and prepare a full report on his condition, current treatment and prognosis.
The cause of the condition is of particular interest to the employer, as is the extent to which it is feasible for the employee to return to work, possibly in a part-time capacity or to do different duties.
Be aware of your duties
All employers have a duty to make reasonable adjustments for the benefit of a disabled employee. This means the employer has to explore whether it can modify working practices and policies or physical features of the workplace to avoid putting the disabled person at a substantial disadvantage in comparison to people who are not disabled.
Employers should consult with the employee and their doctor(s) about any adjustments, and be sensitive and creative. There is a wealth of information available from organisations such as the Disability Rights Commission.
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The employee’s position (for example, length of service and likely duration of absence) should be balanced against the employer’s (for example, the nature of the job and the effect of the absence on colleagues).
If, following full medical advice and a detailed exploration of what might be feasible, it appears that no reasonable adjustment is possible, then the employer may have no option but to dismiss.
Melissa Paz is a solicitor on the employment team at Withers LLP
