How to Manage Long Term Sickness Absence

Long term sickness absence can quickly become challenging for employers, raising both practical and potentially legal issues.

For managers, it can be difficult to know in the circumstances what they should do to ensure they are providing adequate support to the absent worker, while also being mindful of the interests of other staff and the organisation as a whole. Questions are commonly asked about how much contact employers should make with an absent employee, when reasonable adjustments are required to facilitate an employee’s return to work and when dismissal may be appropriate.

In this guide, we explain the legal position on long term sickness absence and share practical advice for HR and managers to deal with such matters.

 

What is long term sickness absence?

Long term sickness absence is when an employee is absent from work for an extended period of time due to ill health. In many organisations, an employee will be classed as on long term sick leave after a period of approximately 4 weeks, at which stage an absence review may be undertaken, in conjunction with the employee, to assess the employee’s long term prognosis and what steps can be taken to help support their return to work.

All employers are under a statutory duty to ensure the health and wellbeing of their employees at work, which includes giving them sufficient time within which to make a full recovery and making sure that staff do not come back to work before they are fit to do so. However, employers will also need to consider the operational needs of their business, including whether and when the employee’s return is likely, so that steps can be taken to arrange appropriate cover, or even a permanent replacement, if necessary.

 

Managing long term sickness absence

Many workplaces will already have in place a sick leave policy setting out in writing the various different aspects arising out of being off work due to illness or injury, in this way managing the expectations of unwell staff, not least when they are at their most vulnerable.

However, where a policy does not exist, or does not address in detail the way in which extended sick leave will be dealt with, this can be broken down into two stages. The first is to manage the employee’s absence, while the second is to manage their return to work.

During the first stage of any sick leave, at which point it will often be unclear whether this will lead to long term absence, the employer will need to focus on the most practical and pressing matters, such as the provision of fit notes and payment of sick pay. During the second stage, the employer should be undertaking regular reviews of the employee’s absence and the reasons for this, securing advice from an occupational health expert where appropriate to do so. The aim here is to assess the likelihood of the employee being able to return to work any time soon and what steps can be taken to facilitate their return.

There is no set timescale as to how long each stage should last, although this may already be prescribed within any workplace sick leave policy. The length of each stage may also depend upon the nature of the employee’s condition and the circumstances surrounding this, including any treatment plan, where the employer may need to be flexible here.

 

How many fit notes are needed during long term sickness absence?

If an employee is off work sick for more than 7 consecutive days, including weekends and bank holidays, they will need to provide their employer with a fit note. This will set out the date they were clinically assessed, the nature of their condition, when they are likely to recover or whether they will need to be reassessed to determine their fitness for work.

On expiry of any fit note, if the employee continues to be absent on sick leave, they will need to obtain a further fit note, and continue to do so throughout their period of leave.

 

For how long is SSP payable during long term sickness absence?

All employees who earn an average of at least £123 per week and have been sick for 4 or more days in a row, including non-working days, will be entitled to statutory sick pay (SSP). This is payable at a weekly rate of £109.40 for up to 28 weeks. An employee may be entitled to an enhanced rate of pay under their contract of employment and any occupational sick pay scheme, but they cannot be paid less than the statutory minimum.

Ensuing that an employee absent from work on long term sickness absence is in receipt of SSP or contractual sick pay forms an important part of the employer’s obligations, including ensuring the employee’s emotional and mental wellbeing during this difficult time.

 

Can someone on long term sickness absence be contacted?

It is important for employers to maintain contact during any period of sick leave, especially in the context of long term sickness absence, not only to deal with any practicalities, such as updated fit notes and absence reviews, but also to offer reassurance and support. In this way the employer can help to discharge their statutory duty to ensure the employee’s health and wellbeing, as well as maintaining a positive working relationship for the future.

There are no set rules around when and how often an employer can contact employees during a period of sick leave, although there is a fine line between reasonable contact designed to check on an employee’s welfare, or to address any absence-related matters, and unnecessary or excessive contact that can have an adverse impact on a person’s recovery. This means that employers, or those responsible for managing an employee’s absence, must set some acceptable boundaries, letting employees know what to expect of the employer.

 

Should someone on long term sickness absence stay in touch?

There is no automatic obligation on an employee to keep in touch during sick leave, not even during long term sickness absence, although it is important for employers to let an employee known in advance what is expected of them if they are signed off sick. Ideally, this should be set out within any workplace policy, including the initial obligation to report their absence from work and the reasons for this, together with the obligation to provide ongoing proof of ill health and to co-operate with any absence review, where needed.

In cases of short term sickness absence, it may be reasonable to ask the employee to call in sick every day to keep their line manager appraised of their return date. In contrast, in cases of long term sickness absence, the employer may instead need to formulate a plan to support the employee during their absence and deal with any practicalities, including the level of contact, communication and co-operation to be expected from both sides.

 

How should someone be supported with their return to work?

The employee’s fit note can provide the ideal starting point when it comes to managing long term sickness absence. This is because their most recent statement of fitness for work will show whether the employee is still unfit for work, or possibly ready, subject to certain advice. In cases where the employee’s GP has deemed them potentially fit for work, the note may also indicate the ways in which an employee can be supported in doing their job role, such as a phased return, altered hours, amended duties or workplace adaptations.

At the point at which an employee is deemed fit for work by their GP or treating practitioner, there is no strict legal obligation to follow the advice given in the fit note, although it can provide both the employer and employee with a useful guide as to what may support their return. However, it is important for the employer to ask the employee for their own suggestions as to how they feel best able to get back to work.

In serious or protracted cases of long term leave, including cases where the employee’s latest fit note continues to sign them off as unfit for work, the employer may want to refer the employee to an occupational health specialist for assessment of their fitness for work in the context of their job role. The fit note can be helpful, but will often only provide a broad overview of the employee’s capabilities and what may support their return to work.

Employers must also bear in mind their statutory duty to make reasonable adjustments to support an employee’s return to work for anyone suffering with a disability. This is because, by law, employers must make changes to an employee’s working conditions if that individual is now classed as disabled. This could include things like working shorter hours or adapting equipment for an employee to use at work. If an employee has been diagnosed as suffering from a long term physical or mental impairment that amounts to a ‘disability’ within the meaning of the Equality Act 2010, an employer runs the risk of allegations of unlawful disability discrimination by failing to make reasonable adjustments.

 

Can someone on long term sickness absence be dismissed?

In theory, it can be possible to fairly dismiss an employee on long term sickness absence, where capability is one of the five fair reasons for dismissal set out under the Employment Rights Act 1996. However, to avoid allegations of unfair dismissal, or even a claim for unlawful disability discrimination, the employer must follow a fair capability and dismissal process.

It is typically at the 4-week point, or any other absence trigger prescribed within any sick leave policy, that an absence review meeting should first be held to assess the employee’s long term prognosis, after which a capability and dismissal procedure may be triggered.

However, depending on the nature and extent of the employee’s illness or injury, there should usually be a number of absence review meetings before instigating any formal procedure with a view to bringing their employment to an end. There should also generally be in-depth and specialised medical opinion to support any view that the employee is no longer capable of doing their job role, not even with any reasonable adjustments. This is because the employer would not only need to show that the dismissal procedure followed was fair, but that their decision to dismiss was reasonable in all the circumstances.

In cases of long term sickness absence, there is no maximum period that an employee can be signed off work sick, as much will depend on the nature of their ill health and the prognosis for their recovery. Equally, there is no minimum period that an employer should wait before instigating capability proceedings, where this will again depend on whether or not the employee is likely to fully recover and the potential timeframe involved, as well as the resources available to the employer to keep the employee’s job open for them. However, in all cases, dismissal should only ever be used by the employer as an option of last resort.

 

What best practice tips should be followed by employers?

By understanding how to fairly handle long term sickness absence, the employer should be able to show a system of reasonable responses, not least in the context of any allegations of unfairness if this ultimately results in the employee’s dismissal. Still, having an employee return to work is often the ideal scenario for both parties, where the following best practice tips can be key, not only to demonstrating fairness, but supporting an employee’s recovery:

• Have a written policy in place to manage long term sickness absence
• Ensure that any obligation to pay statutory or contractual sick pay is timely met
• Maintain regular contact with the employee and encourage them to keep in touch
• Ensure that the employee knows what to expect and what is expected of them
• Give the employee sufficient time to recover, including completion of any treatment plan
• Secure the opinion of an occupational health expert to assess the employee’s fitness in the context of their job role, with tailored advice on facilitating a return to work
• Seek independent and specialist medical opinion, where needed
• Only dismiss as an option of last resort and where reasonable adjustments cannot help.

 

Need assistance?

For specialist guidance managing long term sickness absence, including advice on the return to work and dismissals, contact us.

 

Long term sickness absence FAQs

How long can you be on long-term sick leave?

There is no set time that an employee can be on long-term sick leave, although provision may be made within a workplace policy for an absence review after a certain number of weeks to discuss the employee’s return to work.

Can you be dismissed for long-term sickness?

It is possible for an employee to be dismissed for long-term sickness on grounds of capability, but only where the employer has exhausted all other options, including making any reasonable adjustments to help support the employee's return to work.

Which are the 3 most common causes of long-term sickness absence?

The 3 most common causes of long-term sickness absence in the UK are often said to be work-related stress, mental health issues, such as severe depression or chronic anxiety, and ongoing musculoskeletal injuries, such as back problems.

What happens if I run out of sick leave?

If an employee is off work sick for an extended period of time and their sick pay runs out, they could talk to their employer about using any paid holiday entitlement or put in a claim for government benefits.

Last updated: 8 January 2024