How to handle the legal implications of sickness absence

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Managers need a strategy to deal with staff absent through ill health. Jenny Mason reports.

When poor health is the cause of an employee’s absence or performance issues, managers are often reluctant to follow their own policies and procedures because of the misconception that they are unable to discuss the matter with the employee and take action. They often make statements such as “the absence is genuine”, “there is a certificate from the GP”, or “I am not allowed to make contact with them because they are off sick”.

However, employers should not respond to the GP’s fit note as a reason not to explore the employee’s capacity to work. While GPs are unlikely to provide absence certification for their patients if they feel that their patient is being untruthful, they are often unaware of the full employment implications of long-term absence or the nature of the work their patient is employed to do.

Managers are sometimes reluctant to contact employees who are on sickness absence leave, but while on rare occasions this may not be appropriate, most people welcome some form of communication from their employer.

When the issue of health is raised, managers often lack knowledge and confidence. They fear accusations of discrimination or of being uncaring by both the employee and the wider workforce. However, managers may feel stuck between a rock and a hard place. They are unable to manage the situation satisfactorily, but recognise the negative effects on the rest of the workforce, which is understaffed, with a potential reduction in productivity and pressure from senior management to resolve the problem.

The OH clinician must consider the nature of the health problem, the employee’s job and the nature of the business”

Often the manager’s first point of contact for advice will be HR. HR personnel are able to advise on policy, procedure and employment law, but are often unable to make a fully informed decision regarding an employee’s ability to perform their normal contractual role. They may lack information or understanding of the cause and nature of the illness. Companies with their own OH provision can seek specialist advice and the information to be able to manage their employee effectively and remain legally compliant.

Companies that currently do not have any access to OH services (as well as companies that do) are able to access the Government’s new Fit for Work service.

OH knowledge

When based at the employer’s site, OH should have a detailed understanding of the work conducted by the employee, together with an understanding of the company ethos, and will have built a relationship between the employer, employee and the OH service. An external OH service may have less background information and rely heavily on the referring manager to provide a detailed account.

For OH clinicians to provide appropriate advice, employers need to have a robust workplace health management structure in place that allows them to ask OH advisers the relevant questions. Unfortunately, in practice the OH clinician often has to rely entirely on the information provided by the employee attending the consultation. This information often conflicts with what the employer considers are the main issues.

Advising managers on how to apply a management strategy for health-related matters within employment is difficult. Typical questions that arise are: “What is termed as a disability?”, “What, precisely, is ‘reasonable?'” and “How far do I have to go to be compliant with the law with regard to disability?”

When making decisions about what is reasonable, an employer and the OH clinician must consider the nature of the health problem, the employee’s job and the nature of the business. Each case is different and must be measured on its own merits. OH must determine if there is a legal requirement to implement adjustments before being able to make any appropriate recommendations to the employer.

Most employers will try to seek alternative roles, if available, before making employment decisions, and are often wary of terminating a contract or making contractual changes for fear of discrimination claims. There are occasions when the law is absolutely clear. When a medical condition clearly meets the terms of the Equality (Disability Discrimination Section) Act 2010, the employer is required to make reasonable adjustments to ensure that the employee with the health issue is not treated unfairly or discriminated against because of the disability.

However, knowing precisely when a condition is legally classified as a disability is not necessarily a precise science. There are criteria to follow in classifying disability in legal terms that look at: whether there is a physical or psychological impairment and if it is substantial; how it affects day-to-day activities; and how long the individual has been affected or is likely to be so.

Even when considering these factors, the decision as to whether or not the condition meets the criteria can often remain subjective. The clinician must advise managers that in the balance of probability, the condition, if legally tested, could be termed as a disability and therefore the Equality Act 2010 is likely to apply. It would then be prudent to consider adopting reasonable adjustments to ensure that the employee is not unfairly treated or discriminated against.

For example, an employee diagnosed with type 1 insulin-dependent diabetes may not have any other health issues of concern and their condition may be medically managed and stable. Upon commencement of employment, the employer has agreed that it is reasonable to allow the employee to have a set routine regarding meal breaks, the administration of medication and, if required, consideration regarding shift patterns.

Associated health problems

This kind of condition would clearly be classified as a disability in legal terms, as it meets all three criteria. It is reasonable to assume that if the employee were to contract an illness and take sickness absence leave, they would take longer to recover than someone without type 1 diabetes. However, employers do not always understand the significance of associated health problems and fail to understand why a seemingly unrelated health condition would need to be considered in legal terms. An employment tribunal could deem it unreasonable for an employer to apply an absence management policy without considering absence from work for ill health directly related to the condition. Therefore, a reasonable adjustment might be to allow the employee to have a higher rate of absenteeism – for example, as measured by the Bradford Factor – than someone without the condition.

Section 20 of the Equality Act 2010 states that there is a duty to make reasonable adjustments, and if the organisation is able to make the reasonable adjustments, it must do so. When the duty arises, the employer has a positive and proactive duty to take steps to remove, reduce or prevent the obstacles a disabled employee or job applicant faces. Adjustments have to be made only when the employer is made aware – or should reasonably be aware – that an employee has a disability.

If nothing is done, and a disabled employee can show that there were barriers that should have been identified and reasonable adjustments could have been made, a claim in the employment tribunal could result in the employer being ordered to pay compensation, as well as having to make the reasonable adjustments.

Employers do not always understand the significance of associated health problems and fail to understand why a seemingly unrelated health condition would need to be considered in legal terms”

The duty to make reasonable adjustments aims to make sure that, as far as is reasonable, a disabled employee has the same access to everything that is involved in doing and keeping a job as a non-disabled person. There is guidance available, but there are no absolute “reasonable adjustments” to follow as each case is taken on its own merits and requires legal interpretation.

There are various ways to apply reasonable adjustments – some are as simple as adjusting hours, implementing a phased return to work programme and providing additional support and assistance to the employee. However, some adjustments may be considered unreasonable because of staffing and financial resources and cannot be implemented without causing considerable disruption and/or expense to the employer. The organisation must determine if the impact of providing adjustments to the employee is so prohibitive that it cannot be considered reasonable, and must be able to justify its actions if legally challenged.

Reasonable adjustment

In the case of Archibald v Fife Council (2004), the claimant was a road sweeper who was able bodied and became disabled during her time working for the council. She was unsuccessful in her application for alternative work. The claimant argued that she should not have been made to compete for alternative employment if she could show she was able to perform the duties and responsibilities of the alternative post, and that the employers had failed to make a reasonable adjustment under the (then) Disability Discrimination Act.

The House of Lords confirmed that transferring a disabled employee from a post she could no longer do to one that she could do might be a reasonable adjustment that an employer was obliged to make. This might include waiving a requirement to undertake competitive interviews for a higher graded job that the employee would be able to perform.

An employment tribunal will decide, for example, if there has been unfair or constructive dismissal on the grounds that the employee felt that they had been unfairly discriminated against because of their health status. Not making a reasonable adjustment is defensible only if the employer:

  • did not know that the employee was disabled; and
  • could not reasonably have been expected to know that the disabled employee had such a disability.

In the case of Department for Work and Pensions v Hall (2005) the tribunal judged that although the employee had not informed her employer of a mental health condition, her employer had sufficient prior knowledge that this was the case. Therefore the employer had treated her less favourably on the grounds of her disability by dismissing her for misconduct, and had failed to consider making appropriate reasonable adjustments.

Employment tribunals can be traumatic, and the financial implications can be immense and are often the motivation for employers to act lawfully.

Jenny Mason is an experienced occupational health adviser.

This article was originally published on 10 January 2014. It was updated on 20 October 2015 by Fiona Cuming, employment law editor.

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