Illness and injury are two of the most common causes of absence from work. Some of the steps that an employer will need to take in order to manage sickness absence effectively have already been mentioned in the general context of managing absence (defining the problem and its causes ). In particular, employers need to ensure that they keep accurate records of sickness absence, regularly monitor and review sickness absence levels and take steps to tackle any causes of sickness absence that are within their power to control.
Sickness absence records, health records and medical reports are personal data, so employers must ensure that the way they obtain, hold and use this information complies with the Data Protection Act 1998 ( Data Protection ). The Data Protection Code ( Data Protection Links ) gives detailed guidance on handling information about worker’s health. The Code states that an employer who holds information on its workers’ health should be clear about its purpose in doing so, and be satisfied that it will lead to real business benefits. The employer should tell its workers what information it is holding about their health and why. The Code also advises that, while it is management’s role to make decisions about a worker’s suitability for particular work, the interpretation of medical information should be left to suitably qualified health professionals.
It is important to note that the Data Protection Act classifies information about a worker’s physical or mental health or condition as sensitive personal data, meaning that it can be processed only if one of the conditions for handling that type of information is met ( Additional Conditions for Sensitive Data ). Employers would be best-advised to rely on the condition that the processing is necessary to enable them to meet their legal obligations. In effect, this means that an employer should satisfy itself that it needs to process the information in order to meet its duty to safeguard workers’ health and safety, to fulfil its duties under the disability discrimination legislation, to administer statutory sick pay or to ensure that any proposed dismissal of an employee for reasons relating to health would be fair. Although it is theoretically possible to process sensitive personal data on the basis that the employee has consented, the Information Commissioner takes the view that this condition will apply only in limited circumstances as, in order to be valid, the worker’s consent must be explicit and freely given. An employer should not rely upon a worker’s blanket consent given at recruitment.
In legal terms, the most important consideration for an employer managing the case of an employee who has an unacceptably high level of sickness absence is the need to avoid liability for discrimination and unfair dismissal. The relevant legal principles are summarised here, and a suggested procedure for dealing with sickness absence that reflects how these principles can be observed in practice is set out below (consultation with the employee ):
- An employee is protected from disability discrimination if he or she meets the definition of disability in the Disability Discrimination Act 1995 (past or present disability ) by virtue of having a mental or physical impairment that has a substantial and long-term effect on his or her ability to carry out day-to-day activities.
- If an employee is disabled, it is unlawful for the employer to treat him or her less favourably than it treats others for a reason linked to the individual's disability, unless it has justification for doing so. In other words, it must have a reason for acting as it did that is relevant to the circumstances of the particular case and is more than minor or trivial (justification ). It would therefore be unlawful for a company to dismiss an employee for a period of sickness absence that was linked to the employee's disability, unless it could show that the employee's absence was having an impact on the business. According to the Code of Practice issued under the disability legislation, an employer would not be justified in dismissing a disabled employee for taking 'very little more' time off for sickness than other employees.
- Before an employer can establish that it was justified in discriminating against a disabled employee, it must be able to show that it has met its duty to consider making reasonable adjustments to accommodate the individual (duty to make adjustments ). This could, for example, involve a company modifying its usual absence procedure so that it treats a certain level of absence as a trigger for action, such as a review. A company may also need to consider alterations to job content or adaptations to equipment, or redeployment to another job, as an alternative to dismissal.
- If an employee is dismissed for sickness absence after being continuously employed for a year or more, the company must be able to show that it followed the statutory minimum dismissal procedure ( minimum dismissal procedures )and acted reasonably in treating the employee's absence as a sufficient reason for dismissal, to avoid a finding of unfair dismissal. This involves:
– taking steps to consult with the employee about his or her illness and its impact on the business,
– obtaining medical evidence not only on the employee's current state of health but also on his or her prognosis,
– considering redeployment to other work;
– writing to the employee to explain that is considering dismissing the employee because of his or her absence and inviting the employee to attend a meeting to discuss the situation, at which the employee has the right to be accompanied ( the right to be accompanied );
– after the meeting, deciding whether it is practical to continue to employ the individual in all the circumstances; and
– informing the employee of its decision to dismiss and of his or her right to appeal.
- If an employee is dismissed wholly or mainly because of a period of sickness absence that relates to the employee's pregnancy, then her dismissal will automatically be unfair, regardless of her length of service. This principle applies whenever the dismissal occurred, so it is unfair to dismiss a woman for a pregnancy-related sickness absence even if it extends long after the end of maternity leave.
- It is unlawful sex discrimination to dismiss a woman for sickness absence linked to pregnancy or absence during maternity leave. It is not, however, discriminatory to dismiss a woman for a period of sickness absence that falls after the end of her maternity leave, even if her illness is pregnancy-related, if any other employee would also have been dismissed for a similar amount of absence. To this extent, the protection provided by sex discrimination law is more limited than the unfair dismissal protection summarised above.
In theory, it is possible for an employment contract to be brought to an end by the operation of a legal principle termed 'frustration'. A contract is frustrated if the fundamental basis on which it was entered into has been destroyed by subsequent events. This could potentially apply where an employee has developed a serious illness or injury that makes it likely that he or she will be absent from work for a substantial period or even indefinitely.
Where the principle of frustration applies, the employee's contract is brought to an end by the operation of the principle rather than by dismissal. As a result, the employee is not entitled to claim unfair dismissal. It is difficult to predict with certainty, however, when the principle of frustration will apply. If the employee's contract itself provides for the payment of sickness benefits for a certain period, the contract is unlikely to be frustrated during that period at least. Even after that, it is difficult to know how long an employee's absence would have to be before an employment tribunal would be satisfied that the fundamental basis of the contract has been destroyed. It is advisable, therefore, for a company always to follow a fair procedure in dealing with an employee who is long-term sick, rather than relying on the principle of frustration.