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A regular Monday morning absentee due to the excesses of the weekend needs very different handling to an employee with disability issues on long term sickness absence.

The recent repeal of the statutory dismissal procedures will have an impact on how employers deal with those on long term sick leave. Employers should check and where necessary amend their current policy to take these alterations into account. Although the new ACAS (Advisory, Conciliation and Arbitration Service) code does not make it clear if long term sickness absence falls into its ambit, the accompanying ACAS guidance document does contain specific references to sickness absence and contains best practice as well as draft letters to use.

In an attempt to move from what an employee can’t do whilst sick, to what he can do, the government are currently consulting on the proposal to change from “sick note” to “fit note”. The idea being that in focusing on the positive this will encourage an earlier, possibly phased, return to work. Furthermore the proposal also contains the idea that the note will be transmittable in electronic form. Other developments in this field are the long awaited answer to the question;

Does an employee on long term sick leave accrue holiday and can he claim paid holiday even where all other contractual and statutory sick pay has been exhausted? The simple answer is ‘yes’.

Finally care must be had when dealing with the long term sick particularly in relation to possible claims for disability discrimination. A case at the beginning of the year caused much legal comment on the ability to apply a firm wide policy to all and thus avoid claims of discrimination. Previously applying a policy that had a disproportionate effect on disabled workers was a risky strategy. Any euphoria felt by employers was short lived as recent cases have stressed that the necessity to consider reasonable adjustments will fill any gap.

In short, the wise employer will always make information gathering an important part of any sickness policy. Keep in touch with the employee and extract as much information from medical practitioners as possible. In this way, should there be any dispute the employer can show that they made all reasonable enquiries in ascertaining the prognosis before taking any action.

Amanda Finn - Associate Solicitor
Gullands Solicitors - http://www.gullands.com/