An employee with more than 8 years service has been absent from work for the past 15 months.
- The employee is suffering or claims to be suffering with depression/anxiety.
- The employer has been uncomfortable and concerned about managing the issue and has therefore left the employee alone – with very little contact.
- The employers view is that they are no longer being paid, despite the fact that the first 28 weeks should be paid and was paid Statutory Sick Pay only.
- Therefore the employer has taken no action to identify the root of the issue and not been able to identify what they could do to finding an appropriate solution
Why is it important to manage the issue?
Irrespective of the reason for an employee being signed off work due to sickness, action must be taken without delay;
- The employee is still accruing benefits, even if they are not being paid salary, i.e. service entitlement, holiday entitlement, and any other benefits
- Depending on the issue, the employer may be criticised for not managing the issue, particularly where they might be off as a result of having a disability
- The employer has an obligation to identify the reasons for an employer’s absence
- They also need to establish how/what may be necessary in order for the employer to return to work i.e. making reasonable adjustments to help them in the workplace
- Often having a team member absent can have a negative impact on other colleagues
Triangle HR recommendations
- To immediately contact the employer with a plan to carry out a home visit
- To request the employees permission to write to their GP for an up to date medical report
- To arrange for the employee to attend an independent occupational health assessment
After receiving all of the above medical reports and a number of additional meetings later finally a decision could be made to terminate the employee on the grounds of Ill Health. Although it is very important to stress the importance of handling such issues with care and of course having sought professional advice.
In more detail
This particular case, if not handled correctly may have resulted in the employee making a claim for Disability Discrimination on the basis that stress may be considered a disability. The employee would have to demonstrate that they fit the DDA definition of disability.
So how would this be determined?
- Union representatives would need to consider whether the impairment has lasted twelve months or is likely to last twelve months or more or the stress is having a substantial and adverse effect on the ability to carry out normal day to day activities
- If a person is experiencing stress, but has only done so on and off for six months, they may not satisfy the ‘long-term’ requirement. However, if the substantial adverse effects of a condition are more likely than not to recur, they are treated as continuing. And if those effects are likely to recur beyond 12 months of the first occurrence they will qualify as ‘long-term’ under the DDA definition of disability.
- It is common that most episodes of stress (but certainly not all) do not last longer than a few months and even acute episodes of depression may only last a few months, and thus it is crucial to determine whether the effects of the condition are substantial and adverse, and that they are more likely than not to recur.