If it is deemed that the employee cannot return to work, and there are no alternative roles available the employee can be terminated, as per Section 6 (4) of rules concerning employee inability to perform duties they were employed to do
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Why is this not available on the lms system?
Who gives a sh--e what these id--ts do
Drag em through the whole process,the aim is to get out anyway.
Dont give a fanny I won't be back
Wtf
Updated Document from waters handbook
How should you manage an employee who has been absent on sick leave for an extended period of time? Can you hire a replacement? How long do they have to be absent before you can consider termination of their contract? If they are on a fixed term contract that expires, can you let it lapse? What if they are still on probation? How can you avoid a claim for discrimination? Are you allowed to maintain contact with the sick employee or is this seen as pressurising?
These are common questions we hear from employers trying to deal with the increasing numbers of staff absent on long term sick leave. In particular we have been seeing many more cases of stress related leave, anxiety, depression, post natal depression for the last number of years. Employers generally wish to be sympathetic and supportive of staff going through these difficulties but equally are finding that their businesses are in limbo while a person is absent and short-term solutions begin to cause disruptions.
Steps to be taken
Ensure you have a strong absence policy in place that has been launched to all staff. This should include clarity and guidance on Company sick pay, notification and certification requirements and right of referral to an occupational physician for medical assessment. It should include a statement that any outstanding periods of probation will be effectively ‘frozen’ until such time as the individual returns to work.
Adopt a common practice of completing ‘back to work’ interviews with all staff who have been absent on sick leave (certified and uncertified) regardless of the duration or illness. Absence records should be maintained and discussed openly at these meetings. Self-certification is an effective means of managing this if you put the onus on the employee to have to approach their manager on their return and explain their absence.
All staff absent for longer than 3 days should submit a sick certificate from their doctor to their Manager. This needs to be followed up and tightly managed.
If the absence lasts longer than this first certificate staff must submit weekly/monthly certs to the Manager and again this should be tightly managed. These certifications should come from the individuals GP and the Company does not need to fund the cost of these. At this stage the Manager is entitled to hire replacement staff to cover the individual’s role, albeit on a temporary basis.
The individual’s Manager should maintain regular contact with the individual to monitor the status of their condition and ascertain when they are likely to come back to work. Regular contact throughout the absence is encouraged to maintain the individual’s connection to the workplace. However, this should be limited to a needs basis i.e. to ensure regular certificates are forthcoming and should not (as far as is reasonable practicable) involve queries regarding the role.
Generally, we find that sick certifications then tend to extend to monthly intervals. It is at this point that medium term measures are put in place to cover the workload of the individual as the GP should have given some indication as to the likely duration of absence i.e. 2 months, 4 months etc…
When this absence extends beyond 4 months (as a general guide) the employer is in a better position to take a more detailed look at the absence and likelihood of return to work. This can be a good time for HR to begin to manage the communications with the individual directly, invite them in for a general discussion and make them aware that their employment is under review. Arrange for an initial consultation with the Occupational Physician (OP) paid for by the Company. This should give the Company a good sense of the circumstances.
The OP should then give guidance to the Company on the likely duration of absence and/or if there is anything the Company can do to facilitate the employees return to work.
Such things as a period of reduced working hours, lighter duties, support in managing a grievance, an alternative role etc. should be explored.
If the OP suggests a further period of absence is required – the Company will have to decide if they feel this period of time is excessive and constitutes a frustration of the employment contract. This is dependent upon the facts of each individual situation as the OP could determine the employee is unfit for the foreseeable future/3 months/8 months etc.
The Company will then trial any suitable options on a temporary and phased basis with a view to building the employee up to return to their normal role and hours of work over a 1 to 2-month period or as directed by the doctor. If the employee returns to work they should have a weekly meeting with HR and their Manager during this time to assess the progress of their return and a review with the OP at 4-6 weeks. This will either lead to successful reintegration or a relapse of the condition resulting in the employee resuming sick leave.
If the employee remains on/returns to sick leave a report will be required from the OP to give the Company guidance on the likelihood of a return to work and the timescale involved. At this point the Company should organise a meeting with the individual to make them aware that they are considering a termination of the contract on the grounds of capability. The employee should be encouraged to influence this decision before it is made.
After this meeting, a decision can be made to discharge the employment contract on the grounds of frustration or capability. Employers must ensure that all fair and reasonable options have been considered, with medical advice stating that there is no possibility of return to work within a reasonable period of time before this decision is taken. There is no set time frame in law of absence before employers are permitted to make the decision to dismiss, as this is centered on the individual circumstances and the process that has been followed.
A contract may be frustrated where there exists a change in circumstances, after the contract was made, which is not the fault of either of the parties, which renders the contract either impossible to perform or deprives the contract of its commercial purpose. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.
If it is deemed that the employee cannot return to work, and there are no alternative roles available the employee can be terminated, as per Section 6 (4) of the Unfair Dismissals Act 1977as the individual is unable to carry out the role for which they were employed.
In the case of sporadic absences or lateness a more structured procedure should be followed whereby a level of tolerance is established and each time the employee breaches this they are progressed through the standard disciplinary procedure from counselling through to dismissal on the grounds of capability.
If an individual is on a fixed term contract of employment that naturally expires during a period of long term absence, the employer is not obliged to offer the employee a renewal, although employers should tread with caution here. If the employee can prove that the disability is the only reason they were not offered an extended contract they may seek a claim for discrimination.
Precedent eg
Following a recent Tribunal decision (DS -v– a food processing Company UD 964/2011), employers now have some guidance on how to manage long-term sick leave employees. This particular case involved an employee who could not attend work due to a back injury received over two years previously. There were no other positions available in the company and the employer had acted responsibly and reasonably, having followed procedures and obtained medical assessments to see if the employee could return to work. The employer stated that this decision did not fall under the heading of ’unfair dismissal’ and consequently the Unfair Dismissals Act 1977 did not apply. The Employment Appeals Tribunal noted that the employer behaved prudently and acted reasonable in all circumstances, and that ‘the contract of employment was frustrated and had become inoperable’. As the role was clearly unable to be performed this was deemed not to fall under the heading of an “unfair dismissal “, and the legislation had no application.