Dismissing staff on long term sick leave

What should you do if you suspect one staff member is malingering? Deliberate work avoidance can affect your whole team’s morale, says Sue Temelty

Anyone who has scaled up a business will understand that there is potential for people problems to increase as a team grows. A common yet sometimes complicated issue of people management is sick leave. With without effective absence management policies in place, a business and its profit margins can suffer.

It’s not a risk that can be eliminated completely, but it can be managed with effective communication and solid absence management policies which cover all scenarios.

We thought that small business owners would benefit from a summary of how to manage the varying issues around absence from sickness.

>See also: How do bank holidays affect statutory sick pay?

Knowledge and communication are key

The most important thing you can do is to have a good monitoring system whereby all absences are recorded, alongside the reasons behind them. This will help you to keep track and spot any problem trends early on.

All staff must be informed of your sickness absence policy and be shown how to report in if they are unable to work due to sickness. You’ll need to record why they’re off and how long they are off for.

Reoccurring short-term sickness has the potential to be more disruptive for your business and your workforce than an extended period of absence. It’s probably impractical for you to arrange short-term replacements multiple times. It can also be damaging for team morale.

Employees can self-certify their sickness absence for the first seven days, including the weekend but after that they must provide a GP fit note.

Those on long term sick leave, which is any absence of four weeks or more, should be contacted regularly, so you can help them to return via a phased process if necessary.

One of the best management tools for managing absence is to hold a return-to-work interview after any absence. On the one hand it deters those wanting duvet days. It also gives you an insight to those who may be struggling with some underlying condition or issue in the workplace, such as bullying or unrealistic workloads.

‘Tackle things early and you minimise the risk of one bad apple affecting the whole barrel’

Rules around sick pay

As an employer you have two options. The minimum legal right for employees is statutory sick pay (SSP), which is currently (in 2021/22) the sum of £96.35 per week. SSP is only payable from day four of an illness onwards, and the employee is entitled to a maximum of 28 weeks of pay.

The alternative is to choose to be more generous with sick pay in your employment contracts. Most employers offer more than SSP, so you may find it’s detrimental to your chances of hiring good people if you yourself don’t.

>See also: Sick leave – Making changes to company sickness policy

The issue of sickness presenteeism

The natural tendency may be to guard against fraudulent sick leave. However it’s also worth keeping an eye out for sickness presenteeism, where employees return to work before being fully recovered, or won’t leave work at all. This usually happens due to the drop in pay, or a feeling of needing to be seen working – it can affect their performance, staff morale and ultimately your profit margins.

The best way to mitigate this risk is to promote good workplace wellbeing which acknowledges the benefits of employees taking a break from work when needed. For example, encouraging the use of annual leave throughout the year can reduce the risk of sickness absences and presenteeism.

Disciplinary procedures and grounds for dismissal

When it comes to managing those who take unjustifiable time off, an absence management policy is key to understanding any action you need to take.

To start with you need to meet with the employee and discuss your unhappiness with their attendance record. If you keep good attendance records, you can show how their attendance is worse than their colleagues. Explore why this is and set targets for improvement. If they fail to improve then you must follow your disciplinary process carefully.

Frequently a fit note will say that the employee could return to work, but only on “light duties” or reduced hours – something which is not always practical. You do not have to agree if it is not possible. However if they do return on a part time basis, then their pay is pro rata.

Once you have identified an employee as on long term sick leave, you can ask permission for access to their medical records from their GP or health professional. This is a signed consent form which the GP or health professional will want to see before disclosing sensitive personal data.

Once you have the report you may need to consult Occupational Health rules regarding any reasonable adjustments needed to help the employee back to work.

Long term sick employees may become classified as disabled, with the additional legal protection which this entails. If there is no possibility of that they will return to their job in the foreseeable future, following the correct legal process they may be dismissed on the grounds of ill health capability. We would advise seeking professional advice in this instance.

A point worth mentioning is that statutory sick pay is governed by HMRC, making it a criminal offence to claim fraudulently. The prospect of an investigation by HMRC may discourage employees from any dishonest behaviour.

Worst-case scenario

Most of the time you’ll have honest employees who won’t look to take advantage of sick leave and want to contribute to your business. Hopefully, long-term or fraudulent short-term sick leave won’t even be a passing concern.

These sorts of risks can be reduced through honest communication, proper policies, and understanding the legislation and disciplinary procedures at your disposal.

It’s just worth knowing how you’re fixed if the worst-case scenario happens. Tackle these things early and you minimise the risk of one bad apple affecting the whole barrel.

Sue Tumelty is founder and executive director of The HR Dept

Further reading

Coronavirus government Statutory Sick Pay Rebate Scheme – how to apply

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Sue Tumelty

Sue Tumelty is founder and executive director of The HR Dept Ltd.

Related Topics

Sick Leave

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