Managing employee sickness absence at work: tips for employers

Partner at Constantine Law, Catherine Wilson, shares her expertise.

Managing health issues in the workplace is probably one of the most sensitive issues facing employers. At the same time sickness absence is estimated to have cost UK employers 138.3 billion as workers lose an average of 6.1 days a year, so there’s a clear motivation to manage this area.

In this article, we’ll explore the different ways you can manage sickness absence as an employer, including how to know when it’s time to escalate matters.

Understanding different types of sickness absence

Employers need to differentiate between various types of sickness absences, as each type may require a different approach.

Starting assumptions: Genuine illness 

Save for exceptional circumstances, it is generally safest to start from the assumption that the illness itself is genuine but this does not mean that the employer is precluded from taking appropriate action.

Similarly, certificated absence does not preclude action by the employer although this is an area where third-party experts such as Occupational Health Service Providers can be very helpful. 

Short-term and intermittent absences

Most absences are short-term and often intermittent, seemingly caused by a variety of unrelated issues. Patterns may emerge, such as the "Monday/Friday phenomenon," where absences cluster around weekends, or an increase in sick leave near bank holidays or after refused holiday requests.

In such cases, employers may challenge the genuineness of the illness. Medical evidence, whether from a GP or Occupational Health Service, might be required to help the employer form a definitive view. It's crucial to note that frequent intermittent absences could indicate an underlying health condition, such as mental health issues, cancer, or menopause-related concerns.

Addressing non-genuine sickness absences

Non-genuine sickness absence becomes a question of misconduct, not ill health.  Unauthorised leave is a breach of contractual obligations to perform contract and receipt of sick pay is dishonest. Both are conduct issues and are covered by the disciplinary procedure. 

Managing long-term sickness absence 

Of greater concern to many employers is the treatment of long-term sickness absence and whether this may justify dismissal. Sadly, we have seen increasing numbers of dismissals since the removal of the statutory default retirement age, and greater numbers of older workers and worsening health issues (for more on that topic, check out our article covering age-related accommodations in the workplace).

Post-Covid, longer NHS waiting lists may also have contributed towards this trend. There is no statutory definition of what is meant by “long term” and it can range from one month to six months but often the absence is much longer.  Generally, where there is no realistic prospect of a return to work, then dismissal may be appropriate.

The process of dismissal

Dismissal requires strong medical evidence as to the employee’s health condition.  An inability to return to work in the near or mid-term can be a fair reason for dismissal. This is a relatively high bar for employers and requires up-to-date medical evidence backed up, wherever possible, with regular communication with the employee. Medical evidence and disclosure is based on the principle of consent.  It is also important that the employer is very conscious of the need to comply with data protection rules governing the storage and disclosure of such sensitive information.

Employees may wish to leave employment and claim benefits. The prospect of a payment in lieu of notice and accrued holiday pay may be financially attractive to the employee. 

A word of warning: the employer cannot provide financial advice, but should take care to signpost the employee to the direct consequences of dismissal, such as the impact on pension rights or loss of life assurance as these can be significant. 

Alternatives to dismissal: Phased return

If the medical evidence suggests that there is a reasonable chance of return to work in the foreseeable future, then the employer should consider other options such as phased return and or a temporary change to job duties. If the employee has exhausted any sick pay entitlement then they should be paid for days/hours when they are working on the phased return. 

The details of any phased return should be discussed with the employee and clearly documented in terms of working arrangements. A phased return for 12 months is not a phased return. It is a changed contract of employment and should be treated and documented as a new role on, usually, new hours and new pay levels.  

Considering disability

Finally, an employer should consider whether or not the employee has a disability, as this can increase their obligations both in terms of the consultation process and the duty to make reasonable adjustments. Occupational Health Service reports in this context often seem to suggest that 99% of referrals are at least potentially disabled. 

This is not necessarily the case; sickness does not invariably equate to disability.  It is also important to note that disability as defined in UK employment law is different from other models of disability and, for example, benefit entitlements.

We have a clear statutory definition here: namely a physical or mental impairment that has a substantial and long-term negative effect on an employee’s ability to do normal daily activities. "Substantial", in context,  is more than minor or trivial and "long term" means normally 12 months or more. Serious progressive conditions such as cancer and HIV together with recurrent but fluctuating conditions such as arthritis also fall within this definition.

Final thoughts on managing sickness absence as an employer

Effectively managing sickness absence is a delicate balance between supporting employees and maintaining business operations.

By understanding the different types of absence, seeking appropriate medical evidence, and considering alternatives to dismissal where possible, employers can navigate this complex area with fairness and sensitivity.

Ultimately, a proactive and well-informed approach to sickness absence management not only benefits the organisation but also fosters a supportive and healthy work environment.

Want to know more about how to handle sickness absence? Click to get in touch with Catherine directly.