The Employment Appeal Tribunal (EAT) recently decided that an employee who was given notice of termination of his employment, following which the date of dismissal was extended on seven occasions, was not unfairly dismissed. The termination date had been postponed in an attempt by the employer to support the employee to return to work after long-term sickness absence. As with many cases, this decision largely turned on its own facts. While the employee was ultimately unsuccessful, it serves as a reminder that employers have a duty to support employees who are experiencing ill health. It also shows that tribunals recognise there must be a balance between the needs and interests of both employer and employee. 

A proactive approach 

Employers can seek to reduce employee absence by taking a proactive approach towards their employees' wellbeing. Some options to consider are:

• Health services and benefits: Making employees aware of health services and benefits available to them, either through the company or third-party providers, is vital. This helps employees stay healthy while working and offers support to those who are trying to get better. Employers should communicate the health services they offer, signposting them clearly and be reasonable about allowing employees time off to access these.
• Managers' support: Managers are essential in supporting employees, particularly if they have health issues. Often managers can identify issues before they become long-term health problems by talking openly and empathetically with workers and seeking to agree action plans. It is important that managers are familiar with the support services on offer and how to help employees who need longer periods of time off for illness.
• Support for older workers: Many people over 50 leave their jobs because of health problems. Offering quick access to health services for conditions that more frequently affect older employees can help address this and allow these employees to feel supported in the workplace. For example, supporting women going through menopause, and recognising the barriers they may face is important. Providing accessible support will help to retain staff of this age demographic.

When absence occurs 

Employers have certain duties and obligations to consider when managing employees who are experiencing ill health. These are designed to help facilitate, and sustain, a return to work.

• Reasonable adjustments: If a worker has a long-lasting health issue that substantially affects their daily life, employers are required by law to consider reasonable changes to help overcome the difficulties they face and support them at work. This could mean adjusting their job role, giving them flexible hours or special equipment to carry out their role. Employers cannot treat workers who are disabled unfavourably because of their health condition.
• Occupational Health (OH): Providing medical support through OH can help workers who are struggling with their health. OH also assists employers to understand a worker's health status and how they can support that employee to remain in their role and/ or return to work in a productive manner.
• Checking in during periods of absence: Employers need to keep in touch with workers who are off sick for extended periods of time, scheduling regular calls to check in. This helps to maintain an open dialogue and sense of connection between employer and employee. It is important to make a note of these conversations and any relevant health details. If absences continue for a few weeks, employers should consider more formal discussions including suggesting they obtain OH advice or other medical reports. They should find out when the worker might come back and if they have a health problem that will last for a significant amount of time.  

Managing an employee’s absence is not a one-way street. The absent employee must engage with their employer, keeping them informed of their absence and its likely duration and participating in check-in calls. They should also cooperate with an OH referral or allow their GP (or other health professional) to provide a report on their condition if their employer makes a request. Refusing to engage is likely to put their employment at risk in the long term. 

Proactive steps and considerate management of ill health absence, combined with employee cooperation, can help employers to reduce the number of workers who are on long-term sickness absence and make their workplace happier, healthier and more productive.

If you have any questions on the points raised in this article, please do not hesitate to get in touch with a member of the Dentons team.