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On the 'Tom and Dick'

20th November 2008
Page 30
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Page 30, 20th November 2008 — On the 'Tom and Dick'
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Which of the following most accurately describes the problem?

There are two types of sick employees that can be a problem for bosses. Those on long-term absence and those who take frequent 'duvet days'. How should bosses deal with these?

Words: Ben Hopps Ernployers that are faced with employees on long-term sick leave or who suffer frequent shorter periods of absence as a result of illness are often in a difficult position. Since the laws relating to sick leave and discrimination have become ever more comprehensive, understanding your rights as an employer has never been more important.

Assess the position

It is generally accepted that employees on long-term sick leave are not good for business. As an employer, you need to be able to rely on your staff being fit enough to carry out their duties While long-term sickness requires sympathy and understanding, it is also important to maintain a commercial perspective.

• The first step is for you to make an assessment of your employee's specific health problems (CM 21 August).

• Have a sickness policy in place that allows you to be involved in order to deal with your employees' illnesses. Implementing return interviews for employees who have been off sick can help both parties to identify and address any ongoing problems.

• From an employer's perspective, it is also helpful to assess if any underlying cause of frequent absences may be a result of a disability. If there is any possibility that your employee may be disabled, you will need to consider your obligations under the Disability Discrimination Acts.

Suffering from 'anti-work-itis'?

If you come to the conclusion that your employee is malingering, you may need to investigate further to assess the reason why. It may be that your employee is being seriously bullied or intimidated, or that there is some psychological complaint or stress affecting your employee's performance. Investigations need to be sensitively and supportively handled.

• If there is any suggestion that your employee is being bullied for any reason, you need to take steps to protect yourself from a potential claim. • If the employee is in danger of developing a psychiatric condition (such as depression), which may affect their ability to work for a prolonged period as a result of a continuing failure to address the situation, you could be facing a very substantial claim for damages.

Of course, if your employee is just plain lazy and wants to be paid for 'duvet days', this is less likely to be an issue, and you can move on to the next step in the process.

Dealing with sickness absence The general advice in dealing with sickness absence is to treat it is a capability rather than a conduct issue. An employee's inability to perform the job he is paid to do is a potentially fair reason for dismissal. If you were considering dismissal, you would need to follow a fair procedure and the decision to dismiss should be one that a reasonable employer would take in all the circumstances.

• Recent case law confirms that it is still possible to dismiss fairly on the basis of capability, even when the employee's illness has been caused by you. For example, where bullying in the workplace has led to psychiatric injury to your employee. In these circumstances, you would have to show you had done everything possible to assist the employee to return to work.

Getting it wrong There are several possible consequences of getting this process wrong.

• Failure to spot a problem, which may lead to a claim for discrimination or a claim under the Protection From Harassment Act 1997 (possibly very bad) to dismissing a newly employed member of staff and facing a fairly minor claim for breach of contract (unlikely to be catastrophic depending on the circumstances!) The good news, however, according to a recent case, is that the employees' compensatory award in respect of salary during the notice period may be reduced if the employee has been off sick for the notice period.

In these circumstances, the employee may only be entitled to statutory or contractual sick pay as applicable, instead of their full salary for the notice period.

This does not mean that you should decide to dismiss an employee on long-term sick leave solely on the basis that their award may not be very high.

As an employer, no-one expects you to be a charity and maintain employees who cannot or will not do their job. There is, however, an obligation on you to ensure you behave fairly and reasonably and do not discriminate.

Preliminary investigation and an accessible support network are important tools because employers should ensure they are in full possession of all the facts before considering dismissal as an option.

It is vital that employers ensure that they take detailed advice on their options at the earliest indications that there may be a problem. •

• Ben Hopps is a partner in Sykes Anderson LLP


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