In this month’s HR clinic, Robyn Clark (aka JacksonR) and Susi O’Brien (HR Help advisor) explored the challenge of managing staff who are on long-term sick leave.

Here is a summary of the questions we received, and the answers given.

How long can someone be off before it’s fair to dismiss them?

Great question! This will however depend on a variety of factors. How long can the practice sustain the absence? You should also take into account the individual – how long have they been with you? Is the health condition likely to resolve? If someone is off with a broken leg, then you’d just need to accept this as the time will come when that break heals and the person can return. However, if someone is off with something like mental health problems or long-standing back pain, this isn’t as clear.

You’ll need to take into consideration how long it will take to follow your sickness management process. As part of this, you will need to refer the individual to Occupational Health, review their responses and meet with the employee to discuss their absence and any potential return to work. The timeline can become protracted by employees feeling as though they can come back, setting a date to return and then not being able to do so. Most long-term absences could be classed as disabilities so you need to consider reasonable adjustments and what you can do to help the employee return to work.

You may also want to factor in sick pay. Once the employee has exhausted their sick pay entitlement, they may be doing themselves an injustice by staying on the payroll. They may exclude themselves from financial support by being employed.

The main thing for me is when there isn’t a foreseeable return to work date, so I’d really advocate asking Occupational Health this question at the time of referral. If there is no foreseeable return to work date then this opens up the opportunity to have the conversation about the employee’s options.

If someone on long-term sickness is about to run out of sick pay, how should you inform them of this?

Good practice is to meet regularly with employees on long-term sickness. You can keep them updated on their pay situation during review meetings. You should also follow this up in writing and confirm where they are with regard to sick pay.

If someone is off for 12 months, are we allowed to replace them or do we have to hold the position and hours for them?

Unfortunately, the job is theirs until they either resign or you dismiss them. You can arrange for interim cover – be that agency, bank, or other staff picking up additional hours temporarily, or employing someone on a fixed-term contract – but the post is still theirs. If you employed someone and then the original postholder wants to come back and you said you’d replaced them and there is no longer a job for them, you’d find yourself in front of a tribunal pretty quickly! My advice would be to follow your sickness management process – if someone is going to be off for a year and has no concrete return to work date you should have the conversation earlier to look at your options.

When someone is on long-term sickness, do you have to give them formal warnings before you consider dismissal as you would with normal sickness absence?

No – your long-term sickness management process should be slightly different to the short-term process. And I am personally not a fan of ‘warnings’ for sickness management but that’s a conversation for another clinic!

Your long-term process is about meeting with the staff member and at each opportunity trying to establish a return to work date. If none is forthcoming, then you’ll move towards the potential dismissal option. A warning doesn’t need to be issued.

If someone returns from long-term sickness, you’d still do a return to work and include the absence in your usual sickness management procedure so it might be that a warning is triggered on their return.

We have a receptionist who’s been off sick for about eight months now. We’ve kept in touch and had meetings along the way. Occupational Health says that there’s no likelihood of them returning to work. We therefore want to dismiss, but how do we do this?

Firstly, well done for following the steps of your policy! This should make it easier for you to close the process off. You need to arrange another sickness meeting to which you have to formally invite the employee. They must be aware that there is the potential for their employment to be terminated on the grounds of ill health at this meeting, and they are also entitled to bring a union representative to the meeting. Give them enough notice to help facilitate this if required – normally a week is enough.

At the meeting, you would review the Occupational Health advice and check if the employee agrees that they are unable to return to work. Ensure you have discussed other options if you haven’t done so before – e.g., redeployment to another role, reduction in hours etc. If it’s still a no-go, then you’ll have to dismiss and give the appropriate notice. The employee may be eligible for ill health retirement depending on the reason for their absence so it is worth mentioning this to them as they will need to instigate the application process for this.

It’s always good practice, especially for a long-standing colleague, to confirm what the team can be told and offer them the option of a leaving do if you normally would for other staff. You should also give the employee the right to appeal the decision to dismiss.

What happens if Occupational Health states that an employee off sick is disabled and recommends reasonable adjustments which, to us, aren’t reasonable?

Essentially the deal with the Equality Act is that if you have a health condition likely to be covered under it, the employer has a duty to make reasonable adjustments to enable that employee to work. In terms of sickness management, this normally means adjusting absence targets for someone with an underlying health condition. It can also mean things like providing workplace adaptations to enable someone to continue working, being flexible with working hours, and amending duties to accommodate the health problem.

But the adjustments need to be reasonable. So, for example, installing a lift in an old building at a massive expense to enable one person to access it may be classed as unreasonable but allowing someone to change their shift pattern to accommodate regular appointments wouldn’t be.

The best way to find out how to support the employee with reasonable adjustments is to discuss with them what they feel they need. And make sure you document the conversation and any outcome! If you’re unable to support the adjustment, you need to give clear reasons why – and be prepared to defend these if challenged!

We’re trying to invite someone to a meeting to discuss their long-term absence but they’re refusing to attend and say we’re hassling them. Do you have any advice?

We get this one thrown at us a lot, don’t we? It’s a myth that you’re not allowed to contact a staff member when they’re off sick and staff should still abide by organisational policies while on sick leave.

The main thing here is to make it clear in your sickness policy what your approach will be. And then stick to it. If the employee doesn’t like being contacted, you can refer to the policy which states it is a requirement. Some policies go as far as to say that any occupational sick pay will be withheld if the employee does not act in accordance with the policy.

So you need to be clear on the expectation – ideally make a plan with the individual on how often you will be in contact and how frequent any meetings will be. Highlight that the aim is to support the employee. If work is the cause of their absence, you’ve no chance of making it better if you don’t know what the issues are! And if that doesn’t help, you just need to carry on the management process in their absence – but be clear, in writing, that this is what you’ll have to do as a result of their lack of engagement. This could potentially mean their dismissal if you have no way of knowing whether they intend to come back.

A member of staff is off sick with mental health issues. They want us to arrange an Occupational Health appointment and say they won’t return without one but our practice doesn’t have an Occupational Health provider and the partners don’t want to be ‘blackmailed’ into signing up for one. Can we refuse the request?

I mean you can refuse, but I really would not advise it. You don’t have to sign up to a whole service for Occupational Health – you can just instruct a company to do a one-off assessment. The cost may seem a bit unfair but when you compare it to the sick pay the employee may be receiving and the cost of covering their role, it’s actually not a big expense. If you end up in a position where you could dismiss this person and you haven’t sent them to Occupational Health… well you might as well include the cost of an employment tribunal in there as well. Courts will expect a medical opinion to have been sought for any dismissal case on the grounds of poor health or attendance. If the employee’s mental health condition has been impacting them for more than a year or is likely to, then they could also be classed as disabled under the Equality Act. A failure to refer to Occupational Health would be a failure to make a reasonable adjustment for a disabled person, and compensation awards at tribunal for disability discrimination are uncapped so I would highly recommend just doing the referral. £200 versus potentially £200,000? I know what I’d go with.

We have had someone off for the past six months but it’s known that they went on holiday abroad over the summer (Facebook of course). Since then the other staff members who’ve been picking up this employee’s work for months have been making snarky remarks about it – implying that the management and partners aren’t doing anything about it. I need to bring this situation to a close, but how?

This is always a hard balance to strike as confidentiality is really important. You’re not at liberty to discuss what management processes have occurred as the employee has the right to have that information to be private. However, you can assure staff that you are following your policy but that you are not at liberty to discuss the details. When staff show frustration at having to cover, I ask them to think that they wouldn’t like to be in the position of the person off sick and, if it were them, they would hope that their colleagues had their back too. I’d then look to address anything they found themselves struggling with to see if there was anything I could do to support them. Sometimes just getting staff to try to put themselves in the other person’s shoes can really help.

How are we supposed to interpret vague phrases on a fit note like ‘light duties’ or ‘phased return to work’? Is it just up to us and the employee?

Almost! You need to have a conversation about this with the employee. For light duties, what does the employee feel that they can do? How long until they think they’ll be back to full fitness? Remember that anything that appears to be longer term should have an Occupational Health opinion.

Regarding phased returns – again this is for you to work out with the employee but there are some rules I tend to stick by. Firstly, employees should be able to return on at least 50% of their normal working hours. In my view, you’re not fit to be back if you can’t do half of your normal time. Good practice for me is to then to gradually increase this over the space of four weeks. This can be extended to six weeks but I would class that as exceptional circumstances. If at the end of six weeks, the employee doesn’t feel up to 100% of their normal working hours, I’d refer to Occupational Health and ask them to consider whether they need a permanent reduction in hours.

It’s a good idea to also have this written down in your sickness policy to back you up. How you pay someone on a phased return will depend on their contract or your policy.

Occupational Health reports – presumably they are just guidance and will ultimately say the employer and the employee need to agree on what is acceptable. How will this help?

I’d be cautious about calling them “just guidance”. They are reports from medical professionals and an employment tribunal will look at these as medical evidence and will expect you to have acknowledged their recommendations, discussed these with the employee and implemented them where reasonable. Every report received should be followed by a meeting to discuss the contents and the potential implications for the employee and the practice.

Occupational Health can be amazingly helpful if you write the right referral! So many reports can come back with nothing specific because you need to ask the right questions in the first place. As a starter for 10, I always include:

• A copy of the employee’s job description so the OH clinician knows exactly what the role entails so they should be able to see how the health condition might impact on that
• A brief absence history so they know how much sickness has occurred in the past 12 months
• Asking the question if there is anything the practice can do to facilitate a return to work
• Asking the question when can we expect the employee to return to work
• Asking the question whether the clinician feels the health condition could be classed as a disability
• Asking the question if we can expect any further absences as a result of this health condition and, if so, what do they think is a reasonable level of attendance that we can expect of the employee
• Asking the question if there is anything we can do to enable the employee to maintain a good level of attendance

If the report doesn’t cover my questions, I go back to Occupational Health and ask them to answer them! From the answers, however, it should give you a good idea of how much absence you can expect which may mean adjusting targets for a disability and anything you can do to help to keep the employee in work. A good Occupational Health report can actually be really helpful!

Are salaried GPs subject to the same rules and policies as other employees or does the model contract preclude any actions such as reducing pay, the formal management of sickness etc.?

In short, yes, they are. A salaried GP is the same as any employee to all intents and purposes. The BMA contract merely stipulates entitlements such as sick pay, annual leave, study leave etc. The contract should require the GP to comply with all practice policies and procedures which would include sickness management.

How do you feel about the Bradford Factor as a tool?

I think it definitely has its place. Staff can easily figure out how to ‘game the system’ if you only monitor the number of absences or total days lost. I’ve frequently heard staff ask, “So how many more sick days can I have?”

The Bradford Factor tool makes this harder to do as people often don’t understand how quickly those numbers can shoot up depending on the total number of absences and days lost.

However, some people can and still do! So I am also a fan of using percentage attendance as a tool. This measures in percentage format how much absence an employee has had over a longer period. It’s much harder to complete a six-month improvement plan for example and then start having more time off. Larger organisations tend to use this and set a target of about 6% per year. I talk more about percentage attendance in the HR Masterclass Module on Managing Short-Term Absence. Take a look!

Do you have a tool for tracking attendance?

At my practice, everyone has a spreadsheet in their file detailing their absence which calculates the Bradford Factor score and we use percentage attendance when concerns have been raised. However, the Practice Index Holiday Manager, which is free to use, has an absence tracking section so I’ll be moving over to this soon!

We recruited a nurse five months ago but her absence levels have been horrendous. She’s currently off sick for the fourth time and her latest fit note takes her past her probation end date. Can we dismiss in these circumstances?

The obligations on you during the first two years of employment are not as onerous as for someone who’s been with you for longer. And probation is there for this reason – to ensure that you are getting the right level of service from the employee. However, just be careful not to take things too quickly. You need to ensure that these absences are not related to a disability. Has the employee declared any underlying health condition? Are the absences for the same thing, and could this be the beginning of an underlying health condition? If you’re confident that there is no potential for disability then extending the probation deadline due to absence isn’t unreasonable – and as I’ve said, employees don’t have permanent rights before two years so you wouldn’t be doing anything illegal in letting it go over the initial planned review date. It’s always better to dismiss based on failed probation so I would advise having that meeting once the staff member has returned to work. If they’re not likely to return to work, then follow your long-term sickness management process.

 A lovely member of the team has gone off sick recently, mental health related. It’s not a huge surprise as she’s clearly been struggling for a while, and I’m worried that this is going to be a long, protracted absence. Is there anything we can do to help her try to get back to work sooner rather than later?

Absolutely! Early intervention is key if you ask me! Offer Occupational Health early on. Have you got access to counselling for staff or an employee assistance programme? If so, refer her to them ASAP. Keep in contact – how are things going? What is she doing to get help? Is there anything you can do? It is also worth highlighting that keeping a routine can be good for mental health – keeps the brain active, stops people feeling isolated and gives them peer support – and work can form part of that. Just ensure your approach is one of compassion and support, and not obviously trying to keep them in work as that can backfire on you!

If they tell you that work stress is a factor in their health problems then carry out a stress risk assessment as well to see if there are any steps you can take to reduce that pressure when they return to work.

An employee is currently off on long-term sickness. They were entitled to eight weeks of sick pay which has just about run out but at five years’ service, this increases to 12 weeks. Their fifth anniversary is in a few weeks and they think they’re entitled to another four weeks of sick pay at this point. Is that right?

Ooh, that’s a tricky one! It would depend on whether anything is stipulated in your contract or sick pay policy. It’s natural for staff to want to keep their pay going for as long as possible (they have mortgages or rent to pay after all) so I recommend that the wording in your sick pay terms is clear on this point.

For example, the Practice Index template employment contracts and sick pay policies stipulate that entitlement to sick pay is based on the length of service on the start date of absence. Therefore, unless there is a break in absence along the way, it won’t matter how long someone is off or what work anniversaries happen during that time – their sick pay entitlement won’t rise until they’re back at work.

If the wording in your practice’s sick pay terms is unclear on this point, you may need to pay the employee the extra four weeks of pay when they hit five years of service. This is especially the case if your sick pay entitlements are contractual, as most tend to be.

I would be interested to know more about stress at work, especially when that means that people refuse to engage because it stresses them out

I think we’ve covered this to an extent already in terms of how to manage the absence if a person isn’t engaging in the process. Stress at work is the one element that we should be able to make some impact on – as we’re the work representative! So it’s really important that they understand nothing can change about work unless they agree to meet with you to discuss what the stressors are. As mentioned before, the stress risk assessment is also a useful tool in being able to quantify and analyse what’s going on. Be open to potential criticism – as you may find that’s what gets levelled at you – but remember to be open to receiving it and working through solutions that could make a difference. Sometimes there’s nothing you can do to help but having the conversation often demonstrates to the employee that this is the case. If an employee isn’t being specific about what the stressors are, then there is a real chance that the reason for absence isn’t work-related so try to explore that if you can but, if not, then you need to forge ahead with your process making it clear that these discussions have taken place and you have considered any actions you could take to remedy the situation.

What length of time is acceptable for a staff member who has been employed for less than two years?

As mentioned earlier, this really depends on a number of factors, whether there is a potential disability involved being the most important. I’d go back to my rule of thumb though and ask if there is a foreseeable return to work date. Get that covered off by Occupational Health and take it from there.

We have a GP who suffers from endometriosis and she is therefore often off for two days a month. It is hard to make reasonable adjustments for a GP with clinics. What would you advise in this situation? We all appreciate this is demoralising for the staff members and of course, sympathise, but we are cancelling clinics monthly.

This is tricky as really it falls more into the realm of persistent, short-term absence. I would definitely refer the employee to Occupational Health for advice on how this can be managed. Obviously escalating them up your sickness policy may seem unfair given the nature of the health problem but there might be something else you can consider to support their attendance that Occupational Health can help with. Can they work remotely on these days doing telephone triage? If their time of the month is regular and cyclical, can they think about working fewer sessions in that week and making the time up elsewhere? If you’re unsure how to interpret the Occupational Health advice, I’d recommend seeking HR advice as well.

Do staff have to apply for ill health retirement before dismissal?

No, staff can even apply for this a long time after they’ve left your employment if they’re still eligible under the terms (i.e., younger than retirement age). You will probably still be contacted to write an application in support if you were their last NHS employer so make sure you keep their staff records if you think this is something that might crop up. Part of the application process is to also confirm what management support was provided to the staff member regarding their illness so it’s really important that you follow your sickness policy and document all the interactions you have had with them regarding their health. Staff can apply beforehand and, if it is approved, they will have to either resign their post or be dismissed for the funds to be made accessible.

What if the employee doesn’t agree with the Occupational Health advice?

They are entitled to do so. The best thing to do would be to have a conversation with them about it and find out what it is they don’t agree with. If it’s that Occupational Health think they can return to work and they don’t, then that makes your job even easier in determining whether to go down the dismissal route. If Occupational Health think they shouldn’t be at work but they disagree, then get them back in! But I’d recommend doing a documented risk assessment confirming they are going against the advice given and have a plan in place if all doesn’t go as expected. If you’re significantly concerned that the Occupational Health advice is correct and the staff member could be endangering themselves by ignoring it, you can always ask for a second opinion, or a specialist opinion, with the employee’s consent.

And if they disagree with the advice so much that they don’t give consent for you to see it at all – then all you can do is proceed as best you can without the benefit of that medical advice. You tried at least!

What if an employee goes off sick during disciplinary proceedings saying that they’re suffering from stress/anxiety?

Well the easiest way to remove the stress is to conclude the disciplinary proceedings, right? You need to clarify to the staff member that being off sick doesn’t make it go away and that while they’re off sick they will be managed in accordance with your sickness policy. This is also where Occupational Health can be really helpful. Do a referral asking if the patient is well enough to participate in the disciplinary process. It is incredibly rare for them to say no – there’s a huge difference between being well enough to come back to work and do your normal job at your normal hours and being well enough to attend a meeting. So I would get that referral in as soon as possible. Occupational Health will also reinforce that the easiest way to reduce the stress is to get the process over and done with.

We have a staff member who has failed two probation reviews, is now on long-term sickness and has a long-term condition. They are planning to come back to work one a day a week on reduced hours, we have already changed the hours once already. The staff member is off but we are not planning on passing their probation. What do we do?

The two processes are essentially separate so my advice would be to allow the staff member to return to work as planned, and then hold your probationary review as planned. If the reason for not passing the probation is solely down to attendance, ensure you discuss the adjustments you have made (i.e. changing hours already, phased return etc.) and that you have had an Occupational Health opinion as to their likelihood of being able to maintain a good standard of attendance. If the reasons are around performance or conduct, make it abundantly clear that attendance is not the only reason for the dismissal.

Our experience is that Occupational Health don’t answer the questions – any advice?

In the first place – email them back and ask them! If they’re still unhelpful, change Occupational Health provider! You’re paying for a service it is their responsibility to provide that service. If you’re not happy with it, like any other supplier, take your business elsewhere!

Sometimes the reason that Occupational Health don’t answer questions is because they don’t know the answer. Emphasise to them that even a response of ‘I don’t know’ is better than nothing, as this demonstrates the limits of medical advice available to you, allowing you to make fair decisions on just the information you do have.

Is Statutory Sick Pay paid for a maximum of 26 weeks?

Almost – it’s 28 weeks! You need to check the wording of your contract/sick pay policy on this as well as mentioned before – if your occupational sick pay includes SSP then that clock starts counting down from day one of their absence. If your occupational sick pay is additional to SSP then you need to keep an eye on when the SSP entitlement starts being drawn on. Once it’s run out, the employee is sadly entitled to nothing. My advice is to regularly update on pay entitlements so staff know what’s happening, and if it looks like they’ll go down to nil pay I would advise them to speak to the DWP about any financial support they might be entitled to.

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