If you have been off work sick for a long period and you have a long-term medical condition then you may meet the definition of disability under the Equality Act 2010.
Your employer should take into account various considerations when dealing with long-term absence:
- Any issues which may be causing the absence e.g. stress due to personal circumstances or work-related stress.
- Whether there is a pension scheme allowing for early retirement due to ill health.
- Whether there is a permanent health insurance scheme.
- How your employer has treated other employees in the past in similar circumstances.
Your employer may ask you for consent to access your GP records or ask you to be examined by a doctor nominated by the employer.
ACAS Code of Practice
The ACAS Code of Practice on disciplinary and grievance procedures states that where absence from work is due to a medically-certificated illness, an employer should treat the issue as one of capability rather than one of conduct. It suggests the following:
- Employers should take a more sympathetic and considerate approach, particularly if an employee is disabled, and where reasonable adjustments at the workplace should be made that might enable them to return to work.
- Employees must be kept fully-informed if there is any risk to their employment.
- If your employer wishes to contact your doctor then you must be notified of this intention in writing and your employer must secure your written consent.
- If you state that you want to see the report from your doctor then your employer must let your GP know this when making the application and at the same time should let you know that the report has been requested. You must then contact your GP within 21 days of the application to make arrangements to see the report otherwise you will lose the right to do so.
- On the basis of your GP’s report your employer should consider whether alternative work is available. Your employer is not expected to create a special job for you, nor is it expected to be a medical expert, but it should take action on the basis of medical evidence.
- Where there is reasonable doubt about the nature of your illness or injury your employer may ask if you would agree to be examined by a specialist doctor appointed by the company.
- If you refuse to co-operate in providing medical evidence or to undergo an independent medical examination then your employer may proceed to take a decision on the basis of the information available which could result in dismissal.
- If you are allergic to a product used in the workplace your employer should consider remedial action or transfer to alternative work.
- If your job can no longer be held open and no suitable alternative work is available then your employer should inform you of the likelihood of dismissal.
- If you are dismissed your employer should give you a period notice which you are entitled to under statute or contract and inform you of the right of appeal.
Discussions with Your Employer
Your employer should have discussions with you throughout your illness/absence ensuring that you are aware of the point at which dismissal may be considered. The contact should be personal and regular. Your employer should consider your opinion on your condition and your likely return date. If you are disabled your employer will also need to give thought to any reasonable adjustments which would enable you to come back to work.
Your employer is still entitled to deal with your absence even if it is responsible for your illness or incapacity – for example, if it is responsible for an accident at work. However, an Employment Tribunal will expect your employer to ‘go the extra mile’ before dismissing you in these circumstances and to do more to avoid the dismissal, for instance by allowing you a longer period of time off before any steps are taken or by making more extensive efforts to find alternative work.
Your employer may refer you for an occupational health assessment which considers the impact of your work on your health, whether you are fit for the work that you do and what steps, if any, would assist you in returning to work. Your employer may also seek guidance from a government organisation, such as Fit for Work, Healthy Working Wales and Healthy Working Lives in Scotland.
Your employer will usually consider the length of absence, the nature of illness, the employee’s job and whether it can be covered by someone else, when the employee might be expected to return to work, and the nature of the employee’s business before deciding the point at which the absence needs to be addressed.
The size of the employer is likely to be relevant, as a small employer may be less able to cope with a longer absence than a larger one, which may be able to reallocate staff to cover the absent employee more easily. Particular jobs may, for safety reasons, not permit continued employment after certain illnesses – for example, a heart attack or epileptic seizures, where the nature of the job makes it unsafe for the employee to continue.
Can I Take Holiday when Off Sick?
If you are absent from work due to long-term sickness absence you can seek to ‘nominate’ some of that absence as holiday. This is often done when an employee has exhausted the right to paid sick leave in order to take advantage of a more generous holiday entitlement.
If you have been off work for a long time due to illness or injury and you are concerned about being dismissed, our Employment Solicitors can help. We can explain your legal rights as an employee and the options available.