You have an employee on long term sick for stress or depression. As we described in earlier blogs you have already had a discussion about the absence; but the absence is continuing.
The first question to ask yourself is whether or not you have tackled any issues for which you may have responsibility, work overload, bullying, etc. If these matters are at a serious level them failure to tackle them would leave you vulnerable to a constructive dismissal claim, or even damages.
You can also look at the effect on the business. Is this absence merely inconvenient or is it affecting output, the workload of others, quality etc. Is it standing in the way of a replacement employee? If you are not culpable as outlined in the previous paragraph, then you may want and need to proceed along a path that could lead to dismissal.
The usual procedures that apply to a disciplinary matters are mirrored here, save we advise that the word disciplinary is NOT used. To do so would suggest that the employee is in someway guilty of misconduct. In the case of sickness absence this is not likely to be the case. Even if you think it might be it is still safer to ignore that possibility.
If you have a separate capability policy then this will guide you. If not, then think of this as a staged process. The employee is entitled to accompaniment, by a Trade Union Official if they wish. You need to acquaint the employee with the seriousness of the situation – if they are not able to return then you are likely to be dismissing them. It is essential that this is clear but both sides should give time to see if the situation changes; so it would be inadvisable to dismiss on the first meeting.
The meeting should be minuted and should address any issues that might be in contention, such as whether there are steps that the employee, or you as the employer, could take to facilitate a return to work.
The employee must have the right of appeal against any caution that you might dismiss them.
Give an appropriate period before reviewing again.
12 weeks absence is often regarded as a “tipping point”. After 12 weeks less than 50% of absentees ever return to work. But do not be complacent. We have seen employees on long term sickness turn both lack of attention and “excessive” attention into constructive dismissal claims. And, even if they don’t, you could still be paying 5.6 weeks holiday pay out for little or nothing in return.
The best advice we can give is to be balanced, but proactive, in your approach.
We are always happy to advise clients, new and current, in particular cases.