Employee sickness absence legal advice

Our experienced employment law team help employers manage absence effectively.

Whether an employee is not working due to long-term illness which may be a disability, frequent short-term absences or a complex medical condition, we help employers stay compliant with employment law and mitigate the legal and reputational risks.

How we can help

Our experienced employment lawyers provide practical and tailored advice to employers facing sickness absence challenges. We can help you :-

• Develop effective absence management policies - with clear, legally compliant absence management policies .

• Provide guidance on setting reasonable absence thresholds and procedures.

• Advise on best practices for recording and monitoring absence.

• Assist with communication with employees and their representatives.

• Advise on potential disciplinary action, if necessary.

• Ensure compliance with relevant employment legislation, including the Equality Act 2010, Disability Discrimination Act 2005, and Health and Safety at Work Act 1974.

Risk areas for employers

Based on our experience, key problems and mistakes for employers include :-

• Not having a clear sickness absence policy and/or not sticking to it - be consistent in your approach, checking how you have approached other staff absences.

• Pushing the employee too hard for information - if the employee refuses a medical examination or to provide medical information.

• Assuming the legal risks are low if the employee has not been employed by you for 2 years or more - the 2 year rule only applies to unfair dismissal claims, not claims for discrimination, which requires no minimum period of employment.

• Record keeping - vital for sickness-related absence and communications.

• Mismanaging return to work - needs to be handled very carefully for long term absences

Does the employee have a disability?

It is crucial to evaluate whether the employee is suffering from a disability. In English employment law, a disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.

If an employee's disability results in extended periods of work absence and the employer terminates their employment due to this absence, such termination will be considered discrimination arising from disability, unless there is a valid objective justification. The employer is also required to actively consider and where possible implement reasonable adjustments which might in some cases enable some form of return to work for the employee.

Please do contact our employment team for practical guidance on managing employee absence.