Launched on 24 January, the government’s Green Paper on welfare reform – A new deal for welfare: Empowering people to work – has drawn employers’ attention to the issue of incapacitated staff. However, while the proposals deal with getting people off incapacity benefit and back into employment, the broad thrust of public policy is to prevent staff going on long-term leave in the first place through more effective management of sick or disabled staff.
In cases of long-term absence, not only do employers need to be aware of the dangers of claims for unfair or constructive dismissal, but also of claims of disability discrimination. Virtually all types of illness, from stress to a bad back, can, in the right circumstances, fall within the scope of the Disability Discrimination Act 1995, and an employee does not need at least one year’s service to bring a claim.
However, by following the correct procedure, employers can minimise the abuse of sick leave, and concerns over genuine absences can be legitimately resolved. Whether bogus or genuine, sickness absence can, in most circumstances (provided it is handled correctly), be grounds for disciplinary action and even dismissal.
Termination of employment as a result of sickness absence would usually be classed as a dismissal in law. Since 1 October 2004, dismissals must comply with the three-step statutory disciplinary and dismissal procedures of the Employment Act 2002 (Dispute Resolution) Regulations 2004. These procedures require that the employer drafts out a letter stating their concerns and inviting the employee to a meeting where the matter can be discussed, and the employee can put forward their response. A decision must then be made, and the employee must be given a right to appeal.
However, the statutory disciplinary and dismissal procedure alone is not sufficient in circumstances where ill health is the reason for dismissal. Case law has established that such dismissals should not take place until there has been a consultation with the employee, a medical investigation and consideration, where appropriate, of alternative employment.
Proper consultation with an employee should include discussions at the start of the illness and periodically throughout the duration of the illness. The employee must be informed if the stage is approaching when dismissal may be considered. Even where an independent medical report has been obtained by the company, a decision to dismiss can be unfair if the employer has failed to consult with the employee personally.
A decision to dismiss on medical grounds is not reasonable unless the employer has all the relevant facts which are known, or could reasonably be discovered, at the time the decision is made. The initial employment contract should include a clause to the effect that employees may be required to submit themselves during the course of employment, at the request of the company, to a medical examination by a registered medical practitioner.
While an employee cannot be forced to undergo a medical examination, failure to do so without reasonable explanation may be treated as a disciplinary matter and, more importantly, the employer is entitled to base any decision on the relevant facts available even if, as a result of the employee’s refusal to co-operate, those facts are insufficient to give the full medical position.
One fact that employers often overlook is that they have a duty to consider offering incapacitated staff alternative employment elsewhere in the company. A failure to consider alternative employment may be sufficient to make a dismissal unfair.
When dealing with sick employees, the employer must not only consider sickness, but also disability. Disability is legally defined as a “physical or mental impairment, which has a substantial and long-term adverse effect on [the individual’s] ability to carry out normal day-to-day activities”. If an individual is on sick leave due to stress, this may be considered a disability which puts the onus on the employer to consider reducing their hours or workload or making adjustments to their environment.
The employee’s condition would have to have lasted or be likely to last for 12 months for that stress to be considered ‘long term’, but, assuming this is satisfied, it may qualify as a disability. In this instance, specific legal advice should be sought by the employer.
The key to dealing with persistent short-term absence is to keep detailed records which should also enable problems to be identified at an early stage, and allow warnings to be issued which will give a basis for firmer action later on if necessary.
In the meantime, employers need to ensure that the employees’ initial contracts clearly cover the company’s expectations regarding the taking of sick leave, and that line managers understand the procedures necessary to deal with absence lawfully and effectively.
William Bateman is a lawyer at Manchester law firm, Glaisyers. Call 0161 832 4666 or e-mail firstname.lastname@example.org
Carrying out risk assessments
The most significant requirement of the Management of Health and Safety at Work Regulations (part of the Health and Safety at Work Act 1974) is that which obliges employers (and self-employed persons) to assess risks. The regulations state: “formally to identify the hazards present in any undertaking and to estimate the extent of risks involved, taking into account those precautions which are already in place, to the health and safety of employees and others who may be affected, in order to identify measures needed to comply with relevant health and safety legislation”.
So, in addition to day-to-day routine checks, you are also required to conduct a systematic general examination of work activity and record significant findings. There are various model risk assessments prepared by trade associations and frequently, the assessment will be performed by the health and safety officer.
An additional assessment should be carried out whenever there are new or changed circumstances – for example, when an employee becomes pregnant.
Any business moving into new premises (or modifying existing ones) must check that they meet the required standards.
You must record the findings of the assessment, and you must record any group of employees identified as being especially at risk.
Risk assessment checklist
- Select relevant people to help (from all levels of staff)
- Assign an overall project leader
- Call for proposals on an appropriate basis of assessment for a particular aspect of the undertaking eg, jobs, products, risks, locations
- Review suggestions to ensure all employee risks are covered
- Review again with regard to non-employee risks
- Agree the basis of the assessment
- Agree what information is needed and the method of recording to be used
- Organise project teams for making the assessments
- Estimate how long the assessments will take
- Agree how to evaluate the information obtained and make critical judgments of it
- Agree the method of recording the evaluation
- Decide on the method of checking and agreeing the result
- Decide how uncertainties/disagreements will be resolved.
In addition, ensure the risk assessment is not carried out in a vacuum, and make sure you:
- review employment documentation to ensure that contracts of employment and employee handbooks emphasise the obligations on employees under the Health and Safety at Work Act
- rewrite statutory health and safety policies to put into effect changes in management and organisation
- consider the introduction of formalised information procedures in the workplace to encourage
- where there is a trade union, review collective bargaining arrangements to ensure that health and safety agreements cover all requirements.
This advice is taken from Personnel Today’s one-stop guide to Managing Incapacity, by employment lawyers at Allen & Overy