THE ALCHEMIST ABOUT TOWN

People stuff

Long-term sickness and disability

According to HSE 27.3 million working days were lost in 2014/15 due to absence with stress depression or anxiety counting for 9.9 millions days, musculoskelatal discords 9.5 millions days.
The average days lost per case for stress were 23 days and for musculoskelatal 17 days with average level of employee absence rose slightly from 6.6. days in 2014 to 6.9 in 2015. In this current economic climate this represents a real cost and impairment to businesses especially SMEs.

If employers move to implement / invoke capability / ill health formal procedures (either absence management policy or disciplinary policy) more quickly than they would otherwise under the disability provisions of the Equality Act 2010 and the Employment Rights Act 1996 (ERA) which may ultimately lead to dismissal on grounds of medical capability or ill health, they should consider at that point whether the employee is disabled i.e. whether they have “a physical or mental impairment that has a substantial and long term adverse effect on their ability to carry out normal day to day activities”. 

Long-term absence through ill health is a potentially fair reason for dismissal under the provisions of section 98(3)(a) of the ERA. This relates to the employee’s capability to do the work they were employed to do. 

For the procedure to be fair this will require regular documented discussions with the employee ; a thorough investigation of the up-to-date medical condition and prognosis and the employee needs to also understand at what point dismissal may be an option. 

These discussions should also include a look at what steps the employer could take to get the employee back to work including any adjustments that may be necessary; and, where the employee is not in a position to return to their substantive position, thinking about alternative jobs. 

There is a duty on employers to make reasonable adjustments :

• to premises  or working practices
• to help disabled job applicants or employees
• allocate some duties to another person
• transfer to fill an existing vacancy
• after hours or place of work
• absence for rehabilitation, assessment or treatment
• modify procedures for assessment or testing
• provide supervisor or other support
• disability leave
• support worker/supported employment scheme
• adjust redundancy selection criteria
• modify performance-related pay 

If the employer is responsible for the employee’s ill health, it may be necessary to “go the extra mile” in terms of finding alternative employment for them, or putting up with a longer period of absence than might otherwise be reasonable.

When a disabled employee is absent because they can no longer continue in their substantive position through ill health or injury, employers should consider redeployment as an alternative to dismissal if they are fit to work in some capacity. 

Although this will ultimately depend on whether there are vacant positions the leading case in this type of situations remains that of Archibald -v- Fife Council in which the House of Lords (now the Supreme Court) determined that, in certain redeployment circumstances, disabled employees may be treated more favourably than non-disabled employees, specifically that the duty to make adjustment is triggered when it becomes apparent that the employee can no longer satisfy the requirements of their job description and this entails a degree of positive discrimination. 

In cases of long-term absence, redeployment will arise where the employee is fit to work but not in their substantive role.

While it is generally the case that employers are not required to create a post where one does not exist, this may be a reasonable adjustment when there has been a complete reorganisation or restructure, where legislation does not preclude creating a new post in substitution for an existing vacant post. 

In practice these situations are likely to be limited, nevertheless food for thought.

These matters  of law need to be applied carefully and therefore, if you find yourself in this type of situations, you need to seek qualified advice. Although long term absence or absence in general can be a real disruption to the business and a financial burden,  please do remember to deal with employees with sensitivity, compassion and understanding. It is not easy for them either...