Managing long-term sick leave: A practical guide for employers

One thing which I always see employers struggle with is how to manage their staff who are on ‘long-term sick leave’.

First up I will clarify that there is no such thing as ‘long-term’ sick leave legally i.e. there is no agreed point when a member of staff tips over into this. However, the phrase is widely accepted to refer to staff who have been off for a month or longer with a condition where there seems to be no end in sight. Poor mental health, for example rather than a broken ankle.

A statistic I regularly bring out is that if someone is off work for over 2 weeks in a row, you only have 20% chance of getting them back.

So, what are you supposed to do? Let them linger on sick leave and continue to accrue holiday pay as they contribute nothing to the business?

You can manage their capability but need to tread carefully due to the risk of a disability discrimination claim, which is notoriously expensive. Let’s look at a few recent cases:

• The employee who was off sick and sacked for not being reliable, winning £26,000
• The person who was awarded £17,000 after her employer reduced her working hours in response to her illness
• The individual who has a chronic hip condition and was awarded £15,000+ interest… for her ‘injury to feelings’ never mind the rest of the compensation!

Here are my top tips:

• Speak to your staff on long-term sick leave. There is a myth that you shouldn’t do this. You absolutely can and should. Don’t harangue them or call their personal phone every single day. If they have expressed, for example, that they are having an operation next week and don’t want to be contacted, respect that. But do stay in touch.
• Train your line managers. Arguably these are the people who pose the biggest risk to your business. They are not the ones who meet with me (or whoever your lawyer is). They are not HR. And yet their decisions and comments are the ones which get scrutinised in an Employment Tribunal. You don’t need managers who know the law and handle everything perfectly. You need managers who can spot red flags, have some difficult conversations themselves with confidence, and escalate as appropriate.
• Invest in Occupational Health reports. These reports are a few hundred pounds and often seen as unhelpful as OH sit on the fence. Therefore, I often see employers question whether they really need them. My advice is yes but ensure that you ask questions which will give you the information you need. I have a list, my contact details are below.
• Keep the process moving. Take the lead. The employee may not co-operate, they may raise grievances, or they may in some other way attempt to derail the process. You do need to make reasonable adjustments, but you do not need to drag this out forever.
• Be reasonable. This sounds bland but the legal test which an Employment Tribunal is often assessing is whether or not you were “reasonable”. So, if all else fails and you are in doubt as to the correct legal step, or HR best practice, consider your business and what is reasonable for you and document that decision. Specifically, you should explain in writing somewhere what your thought process was, and why you’re next action is justified. You will see the value in this is you ever have to defend your position.

If this all sounds like a burden, I agree. It is. However, I would like to end with the words of JJ Chalmers, who was injured by a bomb in Afghanistan and is now an Invictus Games medallist:

“Employment sits at the heart of disability inclusion because it is about giving people meaningful opportunities.”

In other words, do remember that the workplace is a huge part of life and it can play a role in helping people either recover or improve their quality of life. The alternative is that those with health conditions struggle even more to hold down a job and are more likely to get tossed onto that scrap heap which is the welfare state.

Managing long-term sick leave can be complex, time-consuming, and legally risky if not handles correctly. We support employers with clear, practical advice tailored to their business.

Grace Smyth is a Solicitor in the employment team at Barker Gotelee, Ipswich Solicitors.

For more information on our range of legal services, including information surrounding managing long-term sick leave, please call the Employment Team on 01473 611211 or fill out our enquiry form.