Hazards in the workplace
Dealing with an employee who is on sick leave can be a big enough problem for an employer at the best of times. But what happens when the employee blames you, the employer, for their sickness absence?
This might be due to an accident at work which, you are told, has left the employee unable to return, or perhaps due to bullying by another employee which has led to anxiety, stress and depression. Perhaps your employee alleges that he's allergic to the office air freshener and can’t work anywhere near it? Anyone who has been in HR long enough knows that there is no limit to the potential hazards of the workplace.
Shape up your policies
Accidents at work may most commonly be an issue for employees working in a manual environment, such as a factory or a restaurant, but there are risks in even the most sedentary job, such as office workers succumbing to repetitive strain injury after too many hours at the PC.
Therefore, whatever your working environment, it's important that you have a policy and procedures in place to ensure that the company is aware of (and complies with) its Health and Safety obligations to its staff, and so that employees know where to turn and what to do in the event of an accident.
Usually, as a minimum, employees should be required to report all accidents at work to HR (or a specially designated officer) immediately, and a written record of the accident should be maintained. In the event that the employee subsequently raises a grievance or brings a personal injury claim against the employer, you have a written record of the incident to refer to for the details. This can help to limit the employer’s potential liability in certain circumstances.
Similarly, the employer should keep records of the steps it takes to comply with its own Health and Safety obligations. For example, employers are obliged to carry out a risk assessment for pregnant employees. A dated and signed record of the risk assessment should be kept so the employer can show that it took place in the event of any subsequent complaint.
Demonstrate a duty of care
Whatever the reason, where an employee is off sick and claims that the sickness absence is the employer’s fault, this may well amount to a formal grievance. Therefore you should usually offer the opportunity to meet with you to discuss the matter in more detail.
At the very least, you will need to ask the employee to provide details of the alleged cause of his sickness in order to be able to address any outstanding issues and to be able to manage the absence and return effectively. Statistically the chances of a successful return drop off a cliff at around 6 weeks so your efforts should be focussed on that initial period.
In some cases, particularly where the sickness absence is long term, it will also be necessary to seek a medical opinion on the employee’s state of health. If the employee is signed off sick for a long period from the outset, it's usually worth starting this process as soon as possible as medical reports can take some time to procure.
It's also helpful to be able to show that you, as employer, have been taking the matter seriously from the start and have been seeking to facilitate the employee’s return to work. This means asking the relevant medical adviser to comment on specific issues such as:
(a) whether the employee will be able to return to work
(b) if so, when the employee is likely to be able to return to work
(c) whether any adjustments should be made to his role in order to facilitate their return, and if so, what adjustments might be appropriate
(d) whether there are any other factors which you should be aware of which may affect the employee’s recovery and/or rehabilitation
(e) what is the likelihood of a further period of absence on the same or similar grounds following the employee’s return to work.
These are example questions only. You will need to provide enough detail of the demands of the role, physical or mental, to allow the reporting doctor to form an informed view. Depending on the nature of the condition and other factors which may be present, you may also need to ask for a more detailed report than this, or even seek more than one report if the sickness absence continues for a protracted period or an early report is inconclusive. You may also wish to notify insurers in the event of a reported accident at work because of the risk of a potential personal injury claim.
Terminating employment
Dismissal should always be approached with caution in cases of sickness absence, not least because it carries the potential risk of a disability discrimination claim if the employee’s sickness in fact amounts to a statutory disability under the Equality Act 2010.
However, ultimately, where the employee alleges that his sickness is caused by the employer, provided you have taken all reasonable steps to address the matter and remove the issue that the employee complains of (to the extent this is possible) if the employee still refuses to return to work you are likely to reach a position where you can legitimately justify termination. A dismissal for sickness or injury culpably caused by the employer may still be fair, though the employee may have a parallel personal injuries claim.
Take for example an employee who says that he cannot return to work because he is being bullied by another colleague. If the employer has carried out a proper investigation into the allegation and is satisfied that it cannot be upheld, ultimately it's likely to be reasonable for the employer to terminate employment if the employee refuses to return despite that finding. Doctors’ fit notes may make recommendations which could facilitate a full or partial return to work. Though you need to be seen to consider these, you are not bound by them if they are not viable in practice.
Introduce robust sickness absence procedures
Dealing with sickness absence caused by factors outside the your control can be frustrating. External factors such as bereavement, marital and relationship breakdown, and financial woes are common causes of long term sickness absence due to stress, depression and other mental health issues. Equally, most other health problems are likely to be unrelated to work, and therefore the employer has no medical influence over them at all.
Essentially though, the same issues arise for employers in managing sickness absence in such circumstances. Keeping in touch with the employee is essential during sickness absence so you should not leave the employee for months on end without communication with him/her about how he or she is progressing.
This doesn’t mean hassling the employee on a daily basis about when they are coming back to work, but regular contact (which should be documented) is important for keeping the lines of communication open and ultimately facilitating a resolution to the matter and ideally a swift return in some capacity or other. Equally, obtaining medical advice early on is important. This might be through the company’s occupational health adviser, or alternatively the employee’s GP if he already has a detailed knowledge of the employee’s condition.
Whatever the cause of the employee’s sickness absence, make sure that he or she complies with your sickness absence reporting procedure, i.e. submitting appropriate fit notes to cover the entire period of absence. If the employee is disabled, you may need to make reasonable adjustments even to your sickness absence reporting requirements for the employee concerned.
However, subject to this consideration, failure to comply with sickness reporting obligations can justify the discontinuance of sick pay and may even amount to gross misconduct warranting dismissal, so it is worth keeping an eye on compliance with your procedures as part of the process of managing sickness absence.