Your Industry  

Entitlements of long-term sick employees

Peter Done

Q: What happens when a phased return to work cannot be accommodated? What if someone who has been on long-term sick leave returns and their duties have been absorbed by an existing colleague?

A: Changes to the sick note system in 2010 gave much more flexibility to an employee who was off work on sick leave and their employer in order for them to agree on the employee’s swift return to work.

Previously, a GP could only state that someone was not fit for work. Only at the point that they were deemed fully fit to undertake all their duties would the sick notes end and the employee would return to work.

Article continues after advert

The introduction of the ‘fit note’ to replace sick notes allowed a GP to discuss with an employee whether they would be able to return to work earlier than they would have, if the patient’s work situation changed. This could include a return to work on lighter duties, for example, or a ‘phased return to work’, meaning that the employee would work reduced days or hours. The employee would then, over time, work towards returning to their normal hours/days. The GP would therefore recommend that the employee could return to work as long as they only work three days a week, for example.

It is important to remember that any altered work pattern/duties is only a recommendation by the GP and not an instruction to the employer. Any changes recommended must be agreed between the employee and the employer. Indeed, the employer is well within their rights to reject the recommendations if they cannot be accommodated. In this situation, the employee is simply deemed unfit for work and will remain on sick leave until their health improves and they can return to work on their full hours/duties.

When you are faced with long-term sick leave, you may realise that you can still operate effectively without this employee, but it would be an extremely risky move to simply dismiss him or her. The reasons for a fair dismissal include failings in the employee’s conduct or capability, and situations such as redundancy, statutory ban or some other substantial matter. But if the issue is that a firm is now doing the work of an absent member of staff, then that does not fall into any of those categories.

It would not necessarily be a quick-fix situation but, if you were determined to reduce your headcount, you would have to treat it as a restructuring situation that would end in redundancy. You would have to carry out a fair redundancy selection process if multiple employees did the same job as the employee returning from sick leave, with the lowest scoring employee being made redundant, which may not be the former ill employee.

Peter Done is managing director of Peninsula