Caroline Maher: Sick leave can be a headache for employer and employee

There are multiple factors to take into consideration when it comes to workplace absences. When an employee is off on long-term sick leave, certain steps must be taken by an employer to ensure it is handled in a fair and non-discriminatory manner.

Caroline Maher is an Associate and employment law specialist at Wright, Johnston & Mackenzie LLP

We recently held an employment seminar in our Dunfermline office which focused on absences in the workplace, and from talking to attendees it was evident that approaching a member of staff who’s off on long-term sick leave is a source of worry for a lot of employers, particularly small business owners.

The first point to note, is that it is important for employers to maintain appropriate contact with employees on sick leave. A balance should be struck between demonstrating concern and offering support and maintaining sufficient distance so that the employee does not feel pressured to offer help or feedback on office developments.

Nothing is set in stone when it comes to the frequency of the contact, but it goes without saying that it should be handled as sympathetically and sensitively as possible. A weekly phone call may work for certain employees, whereas a monthly face-to-face may be better for others, depending on their situation and the particular business.

For the first seven days of any absence, an employee “self-certifies”, and if the absence continues beyond this they will be required to obtain a “fit-note” from their doctor.

If the absence is prolonged, employers should make enquiries into the medical cause behind it by seeking a report from the employee’s GP or, often more usefully, referring the employee to an occupational health specialist.

This will equip the employer with more information on a possible return to work date and will help the employer determine if the employee meets the statutory definition of a disabled person under the Equality Act 2010 – the test being that the physical or mental impairment has a substantial and long-term (lasting over 12 months) negative effect on the ability to do normal daily activities.

Should the employee be deemed to be disabled there will be additional obligations on the employer to support the employee back to work and to determine if there are any reasonable adjustments which may be required to the employee’s role or workplace. This could be a phased return, alternative duties, or providing specialist equipment.

As an employer, dismissing someone defined as disabled under the Equality Act for being on long-term sick leave without taking all of these steps and trying to support them back to work could be discrimination. If an employee felt they had been dismissed because of their condition and resulting absence, they could raise an employment tribunal claim against their employer potentially for disability discrimination, a failure to make reasonable adjustments and unfair dismissal.

I know from experience that lots of employers find this process difficult, as they want to help the employee without overstepping the mark or making them feel uncomfortable or pressurised into returning to work. Many are just unsure of the necessary steps to take.

If you’re in this situation, my advice would be to seek the help of an employment lawyer who can help you ensure you’re treating your employees fairly. If you’re an employee going through a period of absence and aren’t sure of your rights, or think your employer is handling things inappropriately, speak to a solicitor.

While there are guidelines in place, when it comes to certain aspects of handling workplace absences there are no hard and fast rules, so it’s always a good idea to speak to a professional.

Caroline Maher is an associate and employment law specialist at Wright, Johnston & Mackenzie LLP