The larger an organisation the easier it is for employees on long term sick, to drop down the back of the virtual filing cabinet. Here, Beverley Sunderland, managing director, at Crossland Employment Solicitors looks at what employers should do when they remember about a ‘forgotten’ employee.
It can be a case of ‘out of sight out of mind’ when it comes to employees who are absent from work on long term sick leave. Budgets are rearranged to accommodate cover and if there’s a change in HR personnel and management then the sick employee can easily be overlooked in the handover notes. As tempting as it is to think that this is ‘false news’, as President Trump would say, sadly it is a reality in many organisations.
Most employers know and understand that best practice for employees on long term sick includes regular home visits, referral to the employer’s occupational health professionals and reasonable adjustments to get an employee back to work. But what should an organisation do if they suddenly discover an employee on their books who has been off for the last year without any contact?
Many employers immediately think of frustration of contract; but to be considered for frustration there can be no contact and it can be guaranteed there has been something – a P60 sent or other notifications about pension or emails automatically generated, all of which show that the contractual relationship is still alive.
The first steps should be to get back control of the situation and diplomatic information gathering. Is this employee still being paid and if so, is that because they have a very generous entitlement to sick pay, or has discretion been exercised to pay them for longer? Has someone forgotten to take them off payroll when their company sick pay was exhausted or is it because they are in receipt of payments under a company funded permanent health insurance (PHI) scheme?
The answers to these questions will determine what happens next. If the employee is in receipt of PHI and this is being managed by the employer’s insurance company, who carry out regular assessments and are in contact with the employee, then there is generally nothing further for the employer to do. Unless there is a specific provision to the contrary in their contract, there is an implied term that an employer will not dismiss an employee who is in receipt of permanent health insurance payments because once dismissed, the employee is no longer entitled to payments under the PHI scheme.
Sometimes PHI can be limited in terms of time, so for example, if payment is only to be made for three years and that time has elapsed, then although they were in receipt of PHI, difficult decisions will now have to be made about the employee’s continued employment if they are unable to work despite reasonable adjustments.
Whatever an employee’s situation, it is important to get them back on the radar and to understand exactly what is wrong with them and what their prognosis is. Immediate referral to occupational health is the starting point. Honesty is generally the best policy and if indeed the employee has been forgotten about then say so, otherwise they might take the view that this new HR professional has come in and started throwing their weight around and expressions like ‘harassment’ and ‘bullying’ will start creeping into correspondence.
This should be quickly followed by an apology and an offer to do a home visit and to talk to them about how they are. If they have been overpaid sick pay, then their first question will be ‘do I have to pay it back?’ Legally the answer to this might be yes, practically the answer is usually no.
However, if the employee is still in receipt of company sick pay, to which they are entitled, and this has not yet been exhausted, then dismissing an employee who is in receipt of this is likely to be an unfair dismissal. Tribunals take the view that the whole idea of sick pay is to enable an employee to recover. There may be difficult cases when it is clear that an employee, very early on, is never going to recover and so not able to fulfil their part of the employment contract. In these circumstances an earlier decision may have to be made, but these are, thankfully, few and far between.
Another key consideration is a claim for disability discrimination. A ‘disability’ for the purpose of the Equality Act 2010 is a mental or physical impairment which has a long term, substantial and adverse effect on the ability of an employee to carry out normal day to day activities. Long term means that it has lasted or is likely to last 12 months. So, if the employee has already been away for 12 months then it is much more likely that they will be considered to have a disability. Whilst some conditions are automatically a disability such as cancer and progressive illnesses, certain conditions are unlikely to be a disability, such as stress. Anything else which has gone on that long and has been serious enough to keep an employee out of the workplace, is potentially going to be a disability.
Whilst the law does not require employers to continue to employ those who are unable to carry out the role they were employed to do, if the employee has a disability then the employer is expected to make reasonable adjustments to any part of their role which places them at a disadvantage compared to those colleagues without disabilities. Any behaviours exhibited by the employee which are as a result from their ill health should also, generally, be discounted.
Finally, dismissing an employee for ill health capability will be unfair (and potentially discriminatory) unless an employer has taken medical evidence which supports the fact that the employee will not be returning within a reasonable period, despite reasonable adjustments.