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Employment Law

Managing Sickness Absence

Our employment lawyers can help you successfully manage staff who are often absent or who are off work due to long-term sickness. We’ll help you decide if an employee is genuinely ill and advise on how to fairly dismiss an employee if they’re too ill to return to work.

Dealing with genuine sickness needs careful handling. Our employment solicitors will help you put clear policies in place so you can manage employees who can’t work because of an illness. We’ll also make sure you follow the correct legal process before dismissing an employee for sickness absence.

What Does The Law Say About Sickness Absence And Sick Pay?

In most cases, an employee’s employment contract continues as normal during sick leave but they might not get paid their full salary.

Employees can get statutory sick pay (SSP), which is a weekly payment where the amount is set by the government. You can also pay employees contractual sick pay where you set the amount and this is paid over and above SSP. The terms of contractual sick pay should be in writing so there is no confusion about how much your employees will receive when they’re off sick.

Genuine absence isn’t a form of misconduct and must be dealt with as a capability issue. You will also need to treat short term, infrequent absence differently from long term absence – particularly if the employee has a disability.

You can legally dismiss an employee if they can’t do their job because they’re not well enough, but you’ll need to take a number of steps first. This fair dismissal process includes:

  • Keeping a record of the frequency and reasons behind short-term absences
  • Giving employees a chance to improve their absence record
  • Warning the employee that they may be dismissed if their absence doesn’t improve.

If your employee is classed as disabled they’ll be protected by discrimination laws and you will need to take additional steps to avoid discriminating against them, such as:

  • Contacting the employee regularly to check their progress
  • Getting evidence from a medical professional to decide if they can return to work
  • Deciding if you can make any adjustments at work to help them return.

Our team can advise on how to conduct a fair dismissal process. We’ll help you gather the correct evidence to minimise the risk of a legal claim against you.

What Issues Could I Face When Managing Sickness Absence?

The most common issues you could face include:

  • Dealing with employees suffering from mental health conditions linked to their work
  • Dealing with employees who call in sick to avoid a disciplinary hearing or where their performance is criticised
  • Making reasonable adjustments to help disabled staff return to work
  • Dismissing an employee fairly
  • Managing employees who abuse your absence policy
  • Deciding if you should suspend an employee on medical grounds and how to do it.

Your policy should set out what action you’ll take when an employee is ill and whether you’ll make adjustments to help then return to work. It should also explain at what point you’ll issue warnings and consider dismissing them.

Our employment team will use their expertise to update your existing policy or create a new one. We can also advise on staying legally compliant and minimising business disruption if you already have an employee on long-term sick leave or you’ve already started a dismissal process.

Why Is It Important to Manage Sickness Absence Properly?

A clear absence policy that explains how you’ll manage unexpected sicknesses and long-term conditions will help you deal with absence consistently. If you manage the process badly, employees could bring legal claims against you such as:

  • Unfair dismissal claims
  • Constructive dismissal claims (where an employee leaves their job because of your conduct)
  • Disability discrimination claims
  • Personal injury claims (blaming you for their medical issues)

No one wants to go through the costly and time consuming process of a legal claim. Our team can help you avoid these issues by making sure your processes are fair and follow legal guidelines.

How Can Irwin Mitchell Help?

Our employment lawyers have years of experience in helping employers of all sizes manage employee absences. We can help you sort out current issues and minimise future ones.

We’ll help you create a clear sickness policy that works for your business and the type of work your employees do. We can also train your line managers to make sure they understand your policy and their role in implementing it.

If you have employees on sick leave, we can help you get relevant medical evidence and make sure you follow a fair process before making any decisions. This will help you to defend an unfair dismissal or discrimination claim. Our team can also help you get absent employees back to work quickly.

Contact our team today by calling us on 0808 271 2602 or contacting us online.

Why Choose Irwin Mitchell?

With our detailed knowledge of employment law, we’ll give you practical guidance that’s specific to your business and employees. We will listen to you, get to know your business and give you practical advice to solve your problems efficiently.

Clients choose us because we offer both one-off advice and long-term support. We’ll continue to work with you through any issues you run into like dismissing an employee fairly or getting through a legal claim. We can also help you write a legal letter or policy if that’s all you need.

Our solicitors have decades of experience and with offices all over the UK we have an expert to help you wherever you’re based. Contact us online or on 0808 271 2602 to set up a meeting where we’ll talk about your situation.

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