Following on from last week's online update concerning the employer's knowledge of a disability, this week we continue the theme and look at the issue of managing long term absent employees. In cases of long term sickness absence what questions should employers be asking?
Issues for employers
According to the Court of Session in BS v Dundee City Council, the following questions should be asked:-
- Whether the employer could be expected to wait any longer for the employee to return to work and, if so, for how much longer. Relevant factors to consider here would be whether the employee has exhausted their sick pay – employer and SSP. Also, whether the employer is able to use temporary staff to cover the absent employee's role as well as considering the size of the employer's organisation.
- Whether the employee has been consulted with over their absence and likely return. If so, has the employer taken into account their views? Did the employer properly balance the employee's views against the views of any medical professional (NOTE – remember our advice last week not to simply "rubber stamp" an expert's opinion).
- Whether reasonable steps had been taken to discover the employee's medical condition and likely prognosis. Whilst the question to dismiss was not a medical one, had the issue of dismissal been addressed with medical advice in mind?
What about the absent employee's length of service?
The Court also pointed out that although length of service is not automatically relevant, the important issue is to look at the relationship between length of service and absence and whether this indicates the employee is likely to return to work as soon as they are able.
Emma O'Connor, part of the specialist Boyes Turner Employment team comments;
The legal relationship and obligations between dismissing long term absent employees and complying with obligations under the Equality Act 2010 – in particular, the duty to make reasonable adjustments – is sometimes a difficult one. It is not always possible to say when the 'end of the road' has indeed been reached. Employers should not forget their obligations under discrimination laws despite there being a clear dismissal opportunity. However, recent cases concerning sickness absence and disability where the prognosis is unclear, perhaps show a softening of approach by the Employment Tribunals to the difficulties of employers in trying to manage those absent with maintaining service delivery. Despite recent cases, employers should not be quick to dismiss as penalties for discrimination or unfair dismissal are still important considerations.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.