With thousands of new cases of Swine Flu confirmed every week, employment solicitors at EmploymentLawHelp have put together information to help employers cope with sickness absence. This can be a particularly thorny issue and one that can present a number of problems, especially when there is prolonged absence or persistent short-term absences.

If they don't, they could find themselves with angry or demoralized employees or, at worst, a claim against them for disability discrimination or unfair dismissal. Persistent short-term absences can be particularly difficult for employers to manage as they are largely taken at the sole discretion of the employee. Any worker can take self-certified sick leave for five consecutive days, requiring no medical evidence of their illness. The chance for fraud is obviously high but, even if an employer suspects foul play, it is very difficult for them to accuse the employee. How many sick days are too many?

There is no hard and fast guidance on this and any analysis will be based largely on the facts in any individual situation. The key thing to remember is that all absences must be dealt with quickly and the reason for the time off must be ascertained as soon as the employee comes back to work. It might be a good idea to conduct an informal “return-to-work” interview in order to determine the reason for the absence and whether or not the employee has fully recovered. If the employer has a set absence procedure then it must be followed and the employee must be kept up-to-date on its implementation at all times.

An employer should be particularly careful when questioning an employee’s reason for absence. Such doubt could quite easily destroy the trust and confidence held by the employee in the company and could precipitate the employee walking out and, quite justifiably, claiming unfair dismissal. An employer must always, therefore, check with the employee’s doctor before they accuse the worker of fraudulently taking time off sick. If no evidence of fraud can be found, an employee must tread carefully before they accuse their employee of shirking.

Long-term absences are easier for employers to monitor, as they must all be supported by medical certificates, but they present their own unique problems. For example, how long can an employee be away from work before they can be legitimately dismissed?

Surprisingly, the employer should not be looking at the past but the future: the question is not: “how long as he been off?” but “when will he be coming back?” The most important factor, therefore, is whether or not the ill employee will ever be fit for the workplace. Whereas it is true that a long period of absence might be evidence of permanent incapacity, if the employee can produce a certificate to show that he will be fit in the near future, the employer would be expected to delay any sort of dismissal procedure.

Employees should also note that their employers cannot always take a passive role and wait for them to come back to work. If the employee has been seriously ill for a long period of time, it is possible that they would be classed as disabled. If this is the case, the employer is under a duty to make any reasonable adjustments to the workplace that would make it easier for the employee to return to work.

This is another example of a situation where communication between the parties is important: an employer will frequently be willing to make minor changes to the workplace if it helps their employee to come back to work, as it is always preferable to having a worker on long-term sick leave. These changes cannot be made, however, unless the employee is willing to talk to their employer about their health problems and the ways in which they think their situation could be improved.

For more information contact us at EmploymentLawHelp, part of Richard Nelson Solicitors. We are dedicated to providing advice of the highest quality to assist you in any employment issues you may have.