Managing staff who are on long-term sick leave is a challenging situation for practice managers. Following a number of recent posts in the forum on the subject, Robyn Clark (aka JacksonR) held a lunchtime HR Clinic, alongside Susi O’Brien, a HR consultant who specialises in employment law.

As expected, we received lots of questions from members which Robyn and Susi discussed during the session, providing a wealth of information and tips on how to tackle this tricky issue.

For those who couldn’t attend, here is a summary of the questions we received and the answers given.

I would like to know how long is long enough?

Wouldn’t we all! 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 it as there will be a time 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 need to be referring the individual to Occupational Health, reviewing their responses, meeting the employee to discuss their absence and any potential return to work. The timeline can be protracted by employees feeling as if they can come back, setting a date to return and then not being able to do it. Most long-term absences could be classed as disabilities so you need to be considering 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. They may be excluding themselves from financial support by being employed.

The main factor for me is when there isn’t a foreseeable return-to-work date – so I’d really advocate asking Occupational Health this question when you’re referring. If there’s no foreseeable return-to-work date, then it opens up the opportunity to have the conversation about the employee’s options.

Are the first three days of sickness payable or not, as they are not payable under SSP? Should the practice be paying these?

Again, this will depend on what your contractual sick pay looks like. If you only pay SSP, then no, and the first three days are unpaid. If, however, you offer any sort of occupational sick pay – or enhanced sick pay – then this is payable from day 1 of absence.

What is the correct process for notifying a staff member of reduction in sick pay?

Assuming this is a normal reduction in line with the terms of their contract, you can do it in one of two ways. You can write to them with all the information. Or, if you are in regular contact with the employee, just let them know when you next speak about their pay situation and where they are up to. I would still follow this up in writing afterwards.

A receptionist has exhausted sick pay, both contractual and statutory. She has not engaged with contact from her line manager and not followed Occupational Health guidance, claiming still to have stress and anxiety issues and mental health problems, while making vague threats about raising grievances. She still submits fit notes. Can I refuse to offer alternative duties and dismiss on capability grounds as not being fit for her role?

Good practice is to meet regularly with employees on long-term sickness. However, if they refuse to engage with your policy then essentially that is their prerogative, but it does mean you are then unable to appropriately support them back to work.

In this situation, I would write to them and invite them in for a formal meeting under your sickness policy. Explain that if they refuse to attend, you will need to consider your options, but this will be in the context of the information you have available to you – which is sparse given that they haven’t engaged with Occupational Health as per your request and their advice. If they refuse to attend the meeting, then explain that you will need to take further action under your sickness policy, which may mean terminating their employment on the grounds of ill health. Make sure you have documented all attempts at contact, all Occupational Health input. If they don’t attend the meeting, good practice would be to try and arrange an alternative date, making it clear that if they don’t attend, the meeting will go ahead in their absence and a decision will be communicated to them in writing afterwards. If they don’t show up and you have no indication of when they might return to work, and no engagement from them, then you almost have no other option than to terminate their employment, which you would have to do by letter. Include the right of appeal in the letter as per your appeals policy.

If the employee is threatening to raise a grievance, then send them a copy of your policy and explain that they either need to engage with you to discuss it further or formalise it by putting it in writing – in which case, it will be investigated as per your policy. Don’t let threats that lead to nothing stop you from managing the absence.

Just some final words on alternative duties. No matter how challenging the employee is, their right to benefit from reasonable adjustments still applies, and you should always make attempts to engage with them on this subject. If they start responding to you and it’s possible to have constructive discussions about alternative duties (assuming such duties are reasonable and available), then you should absolutely do this. However, if they refuse to meet and talk to you about reasonable adjustments, then on a practical level, such discussions are unlikely to get very far, and any potential tribunal should understand that.

Finding the balance between reducing/ceasing enhanced sick pay with the employee’s need for time off to recover

I think we would all agree that for some staff we’d love to offer them full pay for as long as possible. But we need to be careful about setting a precedent here. You may find yourselves open to grievances or claims of discrimination if you do for one staff member what you wouldn’t do for another. How do you determine who is more deserving of this anyway? My advice is to stick to what is in the contract of employment. Employees who find themselves on reduced pay are often entitled to benefits – so it’s a good idea to update your knowledge of these and signpost them to the available support.

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, 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 things like entitlements to 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.

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 till they either resign or you dismiss them. You can arrange for interim cover – be that agency, bank, 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 wanted to come back, and you said you’d replaced them and there was no longer a job for them, you’d find yourself in front of a tribunal pretty quick! 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 be having the conversation earlier to look at your options.

A member of staff is off sick regularly due to complications from cancer treatment before they started at practice

Firstly, you need to remember that cancer is automatically classed as a disability under the Equality Act 2010, and can remain protected for a long period of time depending on how the cancer, any treatment the employee has had, or any after-effects impact on the employee.

So immediately you need to be thinking about reasonable adjustments for the employee. In terms of sickness management, this might mean adjusting sickness targets for the individual (i.e., allowing more episodes of absence before issuing any improvement plans or warnings, not counting episodes of absence related to the cancer, etc.). You may need to consider other options such as flexible working or amendments to duties if that would enable the employee to attend more regularly and continue to contribute to the team.

If the absence becomes excessive and unmanageable, it’s important to engage with the employee early on. It may be that they’re just not well enough to be in work, in which case they may want to consider other options such as reducing their hours or maybe even ill health retirement. However, this decision needs to come from them and not you! Your role is to provide information on what is available to them. If you’re ever unsure about how to handle this situation, I’d encourage you to seek expert HR advice.

I would like the discussion to cover employees who are protected under the Equality Act.  We have an employee who has been deemed by Occupational Health to be protected under the Equality Act due to numerous health conditions impacting her day-to-day life (not a specific disability per se).

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, that 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, amending duties to accommodate the health problem.

The main thing is that adjustments need to be reasonable. So, for example, installing a lift in an old building at 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!

I had an allegation made against me many years ago after trying to support a member of my team who was away on long-term sick leave. Now I am more cautious but feel it is important to stay in touch. What would be considered appropriate in terms of how often you should check in with anyone on long-term sick leave?

Ah, the old catch 22 of “leave me alone I’m off sick” and “you never showed any care towards me while I was off”! We can’t win sometimes, can we?

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.

How frequent will depend on the individual. The best thing to do is to make a plan with them at the start of the absence that you mutually agree. Bearing in mind that staff on long-term sickness are 60% more likely to return in the first six weeks if they have contact with their manager, then I would say it’s very important to keep in touch.

How do you deal with long-term sickness leave where mental health is involved?

Mental health is always a tricky subject and will vary in its complexity between individuals and situations. However, I would manage it like any other long-term illness. Ensure the employee knows that we are there to support them. Make a plan for regular communication. Check what support they are receiving and see if there is anything we can offer them – Occupational Health, employee assistance programme if you have one, etc. Make sure they still feel connected with the practice – so, if they’d be happy to receive updates about what’s going on or be invited to social events, then clarify this with them. Take a softly-softly approach, but let them know you’re there to support them and will be in regular contact.

The situation can be more complex in situations where the employee alleges that it is their work environment that is causing or exacerbating the mental health condition. Many managers will feel frustrated and put under pressure when this happens, but look at it from a positive perspective; it is much more likely in this case that you will be able to take steps that influence the timing of the employee’s return. So, carry out an individual stress risk assessment with the employee, identify the work-based triggers for their poor mental health, and collaborate with them to find meaningful solutions to these issues. Occupational Health involvement can be very useful in these cases in providing an independent perspective.

Supporting/explaining to other staff who are picking up the extra workload when this is clearly confidential, but the remaining staff need to be considered too

This is always a hard balance to strike and, you’re right, confidentiality is really important. I tend to ask the employee on sick leave what they would like me to say, if anything, to the rest of the team. In most cases, they are happy for people to know, in which case it’s not an issue. If, however, they don’t want people to know, I would have to revert to “I can’t say anything as it’s confidential”. This might annoy some people, but if the shoe were on the other foot, they would expect the same of me.

And that also tends to be what I refer to when staff show frustration at having to cover; I ask them to consider how they wouldn’t like to be in the position of the person who’s 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 and see if there was anything I could do to support.

Interpreting what a MED3 means when it says “light duties” or “phased return to be agreed with employer” – i.e., no guidance at all; it is up to us and the employee

Precisely that, I’m afraid! But that just needs to be a conversation. For light duties, what does the employee feel they can do? How long until they think they’ll be back to full fitness? Anything that appears to be longer term needs an Occupational Health opinion.

As for 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 gradually increase 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 doing 100% of their normal working hours, I’d be referring to Occupational Health and asking them to consider whether they need a permanent reduction in hours.

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

Documenting all the welfare-type meetings and supportive chats (living in fear of a potential constructive dismissal claim in the future)

This is so important I can’t stress it enough. Documentation is key. So, every meeting, phone call, etc. – write it down! Send outcome letters from formal meetings confirming what was discussed and what plans are in place. Keep copies of text communications if you use them.

Occupational Health reports – presumably they are just guidance and will ultimately say the employer and the employee need to agree 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 them as medical evidence and they will expect you to have acknowledged their recommendations, discussed them 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 ten, 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
• Ask the question if there is anything the practice can do to facilitate a return to work
• Ask the question when can we expect the employee to return to work
• Ask the question whether the OH clinician feels the health condition could be classed as a disability
• Ask 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
• Ask 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 them 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 keep the employee in work. A good OH report can actually be really helpful!

Can you ask for an Occupational Health report for two different issues affecting the same person?

Definitely! You really want OH to take a holistic view. So, if you’ve followed my top tips from the earlier question and included a copy of the job description with your referral, you can highlight to the reviewer any health problems the employee has that you want them to take into consideration. Quite often, you’ll find that multiple health conditions will interlink and impact on each other so it would be short-sighted to try and view each problem in isolation.

On sick leave, but found working elsewhere!

This is always a tricky one! Firstly, it’s not illegal to have a second job if you’re off sick, providing for two things:

• The employee is not working hours at the other job when they should be at work for you. This would be classed as fraud as they are essentially claiming sick pay – whether from you or even just SSP – for hours they cannot work.
• The employee is doing a job/tasks that their health condition allows for, and these tasks are demonstrably different to the work they do for you. So if, for example, the employee needs to be able to stand for long periods in the role they do for you but can’t due to MSK problems, but the other job is completely sedentary, then there isn’t a conflict.

My advice here is to ensure you’ve had an open conversation with any staff member who you know has a secondary employment, so that they are aware of their obligations. If they do go off sick, they need to be clear with you that they are working elsewhere and their fit note should say they are fit to work for alternative duties, and what those duties are. You can also include in an OH referral any secondary employment and ask for an opinion on whether the assessor feels this is appropriate.

If you’re fairly certain that the employee is not being honest or could be committing fraud, you can make a referral to NHS Counter Fraud who can investigate. Any person found to be claiming sick pay through fraudulent means will be subject to your disciplinary process and may be criminally prosecuted by NHS Counter Fraud.

Somebody has been off sick since September 2021. Since earlier this year, they were trialling a phased return with limited success. She now tells us she has been signed off as not fit for work the whole time, but wanted to try returning and was grateful to us for facilitating that. She has not continuously submitted fit notes, so I was not aware that she was still signed off until now when agreeing a phased return. Any advice on how to deal with this? The phased return was not covered on the fit note but was suggested by Occupational Health.

It’s a myth that you can’t be at work while signed off sick – so don’t fret that she’s been working when one has been in place. People used to think it would invalidate your liability insurance but this isn’t true. Employees have the choice to return to work whenever they want, if they feel able to – the key thing for us as managers is to have a conversation with them about whether they’re really ready and make sure we document it!

It’s not great that the employee hasn’t been honest, but as it’s their personal choice, there really isn’t much you can do about it now. I would speak to her, though, and explain that it’s important she provides the fit notes and lets you have the conversation with her about whether she should be in or not, just to ensure her safety and make sure there is support in place.

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 numbers 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’m 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. So, 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?

In my practice, everyone has a spreadsheet in their file with their absence on, which calculates the Bradford Factor score, and we use percentage attendance where concerns have been raised. However, the Practice Index Holiday Manager tool – which is free to all members – has an absence tracking section on it, so I’ll be moving over to this soon! Take a look here.

Our HR Masterclass includes a module covering all aspects of managing long-term absence, as well as modules on other important topics, including recruitment, performance management, disciplinaries and managing short-term absence.

The HR Masterclass is an online course delivered in the HUB. For existing Practice Index Learning subscribers, this module is now available in your course list. 

If you do not have a subscription to Practice Index Learning and you would like further information or would like to sign up, click here.

We are looking to host HR clinics on a number of topics. Do let us know in the comments what other topics you’d like to see covered in future sessions.