Posted on Oct 26th 2020.
Long-term illnesses or injuries can happen to any of us and most will experience this at least once in their lifetime. However, for employers having a staff member off on sick leave for long periods of time can be expensive and even disruptive to your business goals!
Both employers and employees often wonder – How long can the employee be on sick leave before they can be dismissed? In reality, this is a grey area, with no real timeline for a return to work or dismissal after a long-term absence.
For employers and senior management, it is important to consider the effect that a long-term illness/injury will have on the rest of your staff members, customers and sales; while also being considerate and giving the absent employee the support & time they need to recover.
A study investigating employers’ response to long-term sick leave found that the most common reasons for long-term sick leave included; musculoskeletal problems (especially neck, shoulder, back and joint problems) and mental health problems – mainly depression.
Around 47% of men and 57% of women who took part in the study had been on sick leave for over a year, and only half of them had been subject to occupational rehabilitation investigations. The half that had these investigations got better access to rehabilitation and were more likely to return back to work quicker.
Most employees who have been on long-term sick leave can return to their jobs fairly easily with a little bit of extra support (which is favourable for both employee and employer). Although, this is not always possible; with some employees being unable to return to work, which is why this can be such a difficult issue to deal with.
In most businesses, it is usually HR’s job to deal with sickness management, tribunals and dismissals. If you need extra HR support and guidance, contact Wurkplace – They take the hassle out of HR.
The government has published guidelines on employee rights concerning dismissals. These guidelines outline reasons for a fair dismissal, stating that you can be dismissed if you have a long-term illness that means you can no longer perform your job description – Meaning you can be fairly dismissed while on sick leave.
However, before taking any formal action, employers should aim to provide support (e.g reasonable adjustments at work) and give the employee a reasonable amount of time to recover and return back to work! If the employee has a disability under the Equality Act 2010 and this is the reason for dismissal, it can be deemed unlawful discrimination.
Before an employer dismisses an employee on sick leave they should consider all alternatives, a dismissal should always be a last resort, not the first. For example, if an employee suffers from severe migraines and has been off work for a long period of time, the employer could consider changing the employees working hours (as working late can often be a trigger for migraines).
Nidirect says that employers should wait for a reasonable amount of time for sick leave employees to return to work; stating the length of time should vary depending on the type of sickness/injury, how long it should take to recover, if they can recover, how easily the job can be covered and whether the job can be kept open.
As soon as an employee reports a sickness absence, senior management should keep in regular contact with the employee to discuss the reason for absence and how long they expect to be off work. Once the staff member has been off on sick leave for over a month, they should be invited to a meeting at work concerning their illness/injury and their expected return to work.
The written invitation and meeting itself should be fully documented and recorded, just in case there is a tribunal further down the line. The meeting should allow the employee to discuss their illness and return to work, having an occupational health professional can be useful in these situations.
Employers can conduct multiple meetings over the duration of the absence, keeping good communication with the employee over the period of illness/injury. If the absence continues for a longer period of time, employers can ask for access to your medical information or ask employees to attend occupational health appointments (to give reasonable long or short-term adjustments to the job).
After multiple formal review meetings and reasonable adjustments to the job, employers can follow the route to dismissal. However, there is no set timeline for this process, it can be difficult for businesses to know what length of time is acceptable to wait before dismissal is considered.
Although, once the decision is concrete, it’s important to follow the procedures that you set out in the employee handbook (e.g. period of notice, etc) to avoid unfair dismissal claims. If the employee believes they have been unfairly dismissed they ask for an employment tribunal!
If employers do not take the proper processes before dismissing an employee, a tribunal could find that it was unreasonable for them to be dismissed which could lead to unnecessary legal and compensation expenses.
Tribunals will look into whether the employer took the right steps before the dismissal; citizens advice state that tribunals will look at:
1. Was a reasonable investigation conducted?
Tribunals will look into the likelihood of the employee returning to work before the dismissal. Specifically looking at if the employer has accurate reports of the sick leave, what information they had on the condition, medical evidence provided and if further treatment could have improved the chance of the employee returning to work.
2. Was the employee consulted before the decision was made?
Looking at whether the employee was warned before the meetings and dismissal process began, if copies of the medical evidence were shown to the employee and if the employee disagreed with this evidence.
3. Did the employer try to help with the return to work?
Investigating if the employer tried to find lighter or part-time work (or another job role temporarily and if they tried to make reasonable adjustments to the workplace.
If the employee wins their tribunal case, the employer may have to pay compensation, expenses, improve the workplace and give the employee their job back (if appropriate). If the employer does not do this they could face huge legal fees in court – This is why sick leave dismissal can be so tricky for businesses.
With over 20 years HR generalist experience across all disciplines, Sarah has worked across a number of business sectors and understands the importance of robust and practical HR processes and trained, motivated and engaged people in delivering business success.
As Wurkplace’s Head of HR, she is passionate about both providing the best HR service to our Clients as well as recruiting, developing and retaining the best team.
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