Don’t let staff sickness make you ill

Managing staff sickness could become even more difficult and costly following a court ruling that the long term ill can accrue holiday entitlement while off work. Insert name looks at how to deal with staff absences.

There is always something of a dilemma for employers when it comes to staff sickness. On the one hand you want to be sympathetic to a person who may be genuinely ill; on the other you need to protect the smooth running of your business and make sure employees don’t abuse the system.

The problem is about to become more urgent following the recent ruling from the European Court of Justice that staff on long term sick leave can claim their full statutory holiday entitlement.

It means a person who is off work for a year will be entitled to the four weeks annual leave accrued during that year.

An employee who resigns or is made redundant while off sick will be entitled to payment in lieu of holidays. This must be in addition to any redundancy payment.

The European Court of Justice (ECJ) said: "A worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness. He must be compensated for his annual leave not taken.”

The ECJ ruling is likely to put more pressure on employers who may already be struggling because of the economic downturn. However, it only applies to statutory minimum holiday pay. Firms may be able to be more restrictive with contractual holiday entitlement which exceeds the statutory minimum.

As the recession continues to bite, some employers may be tempted to dismiss the employee on long term sick leave rather than run up the extra cost of providing four weeks paid holiday. If so, great care should be taken to avoid creating grounds for the employee to claim unfair dismissal.

The procedure must be handled sensitively so as well as just monitoring the employee’s absence record, consult him about his health. Ask him when he feels he will be able to return to work.

The employee should be informed that his job may be at risk and time limits should be set for assessing the situation. You should consider whether the job could be altered to make it easier for the employee to carry out his duties. This could result in the employee returning to work, in which case the problem disappears.

To avoid the risk of the employee bringing a claim, you must be able to show that you followed all the correct procedures and that dismissal was a last resort after all other avenues had been exhausted.

Throughout this process you must remember that many people suffering from long term illness may well be classified as disabled. For example, depression can be deemed to be a disability. If an employee is disabled, this would give an employee protection under the Disability Discrimination Act 1995 and you may not be allowed to treat them less favourably on the grounds of their disability. You should be prepared to make reasonable adjustments to accommodate them. Extra care is needed (including both legal and medical advice on the issue) before taking any action. Dismissing a disabled person because of their long term illness may well constitute disability discrimination and lead to an expensive compensation claim.

It is not only long term sickness that can cause problems for companies. Short term absences are far more common and can be just as disruptive. Employees don’t have to produce a doctor’s certificate for the first seven days so an employer can never be sure if the illness is genuine or not.

The employee is entitled to statutory sick pay from the fourth day of absence.

If an employee is absent for short periods on several occasions, an employer is entitled to take action but should tread carefully before moving to dismissal.

Ideally, the employer should have a sickness absence policy including provision for return to work interviews. Attendance records should be monitored together with the reasons given for absence. Once you know why a person is taking time off work you may be able to provide help such as counselling or occupational health facilities.

The employee must be warned that their job is at risk and given time to improve.

Whether dealing with long or short term absences it helps to have a consistent policy in place that everyone understands. This will then provide a framework for dealing with problems as they arise and protect the employer from future claims if dismissal proceedings become necessary.

Anthony Kay is an Associate in the Employment Department at Andersons Solicitors. He can be contacted on 0115 988 6739 or by emailing akay@andersonssolicitors.co.uk.