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We've put together some practical tips for managing some of the legal implications that arise when employees are unable to fulfil their role due to ill health. It's always a sensitive situation but it is important that you follow the right path to protect your business and avoid the tribunal.

  • Make sure that your sickness absence policy and procedure is robust and up to date as a Tribunal will refer to it and examine whether you have complied with it.

  • Don’t forget employees on long term sick leave. Have systems in place that trigger meetings and referrals to Occupational Health.

  • In order to succeed with certain disability discrimination claims, an employer will be liable if it knows or could reasonably have been expected to know about the disability. Managers cannot afford to ignore warning signs.

  • Train managers to look for warning signs such as:
     
    • Absenteeism
    • Uncharacteristic behaviour e.g. aggressive, emotional, argumentative
    • Uncharacteristic under performance or inconsistent performance
    • Inability to concentrate/ lapses in memory
    • Withdrawal from social activities and interactions
    • Disengagement/ loss of motivation or irritability

If managers are concerned about any of their team, they should be trained to have sensitive and timely conversations with them and to escalate to HR when there are red flags.


  • Home visits can be a useful tool if handled sensitively. If there is any suspicion that the individual is not genuinely ill, you will often be able to get a good feel when face to face.

  • If you have an employee assistance program, make sure you promote it to the employee. If the employee dismisses it out of hand, make a record of that fact.

  • Medical advice is essential before making any decisions on an individual’s employment. Consider the pros and cons of a referral to GP, consultant, expert or occupational health. Make sure that your letters of instruction to medical professionals are detailed and enquire about any potential support or adjustments the business can give.

  • For those employees where adjustments are recommended, not all suggestions will be reasonable for every business to make. However, the larger the business and the greater the resources, the higher the bar in terms of implementation of recommendations.

  • If you doubt the medical evidence put forward by the employee, you should first obtain your own medical advice before challenging unless there is clear evidence that the employee’s evidence is false.

  • For employees who have the benefit of private medical cover, make sure that they use it. If no such cover is in place, consider paying privately for treatment. Referrals in the NHS can take a long time. Prompt treatment can get your employee back into the workplace more quickly and save costs overall.

  • If the employee has the benefit of permanent health insurance or an ill-health retirement pension provision, these options must be explored before dismissal is contemplated or the business risks a potentially large breach of contract claim.

Download a PDF copy of this briefing here.

If you need further information or would like to discuss a specific situation, please get in touch with Rebecca Jorgensen, Partner - Head of Employment, on +44 (0)1293 603642 or email rebecca.jorgensen@asb-law.com.


This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.
Please contact asb law for further advice. © asb law LLP 2018

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