The winter months can prove particularly difficult for both employers and employees when there can be an increase in absence as a result of ill health.
What should an employee do if they cannot attend for work?
A contract of employment or ill health policy should outline what action should be taken when an employee is unable to attend for work. The rule is likely to be that the workplace should be telephoned within a certain timeframe prior to the start of work that day to advise of the absence and how long it might be. From an employer’s point of view, they need to manage the absence and workload.
What should happen on return to work?
An employee should self-certify their absence for the first seven days using a Self-Certification Form made available by their employer. It is important that an employer reviews the reason for absence and identifies any patterns. Any absence beyond the self-certification period must be covered by what is generally termed a “sick note” issued by their medical practitioner. Unauthorised absence may result in disciplinary action being taken.
Is it necessary for an employer to be proactive?
On occasions, absence might be of a long duration, during which time, an employer should maintain a reasonable level of contact with an employee, for example, whether any support can be provided. Depending on any internal policy, length of absence and/or reason for absence, it might be necessary for an employer to have the employee assessed by a third party, such as occupational health. The involvement of occupational health is often to support a return to work plan and how the employee might best be reintegrated safely back into the workplace.
On return, an employer should consider convening a meeting with the employee to ensure that they are appraised of any changes and that there are no problems. It might be necessary to consider periodic reviews to ensure that there is no relapse or further adjustments required.
What if an employee cannot return to work at all?
In some situations, an employee might be unable to return to work, perhaps as a result of a medical condition or the extent of the role that they undertake. An employer should base their decision on a medical report which will review the nature of the role and whether any reasonable adjustments can be made to support the return. Where the report cannot predict a return to any role within the foreseeable future, an employer may consider terminating employment on the grounds of capability in accordance with a fair and reasonable procedure.
What if an employer ignores a defined medical condition?
An employer had a duty of care to all employees, however, there is an additional requirement where an employee has a legal disability for the purposes of the Equality Act 2010. A claim of disability discrimination can arise where an employer fails to fulfil their obligations, for example, a failure to make reasonable adjustments.
Why might a Settlement Agreement be discussed?
Where an employee does not want to return to work, is unable to do so or where an employer may not want them to return, a settlement might be discussed. Where terms are agreed, it is likely that an employer will invite an employee to enter into a Settlement Agreement. This is a confidential document that will prevent an employee from pursuing their employment rights in return for a financial settlement. It is a requirement that an employee instructs an employment adviser to review the Settlement Agreement, which may involve seeking amendments. An employer will usually make a contribution towards the legal fees incurred by the adviser in reviewing the Settlement Agreement.
If you would like to discuss any of the issues in this blog, please contact us.
