Long-Term Sickness Absence

It's fairly normal for employees to be absent from work once in a while. But sometimes, they might be on leave for a long period of time.

For employers, a long-term sickness absence can cause all sorts of business disruptions. But you still need to comply with all the laws surrounding this form of leave.

If you neglect them, employees could raise a disability discrimination claim. Meaning, you could be forced to pay compensation, lose staff, and face business losses.

In this guide, we'll look at what long-term sickness absence is, what the law covers, and how to support an employee on long-term sick leave.

What is long-term sickness absence?

Long-term sickness absence is when an employee takes sick leave because they're too ill to work.

They could be suffering from a serious illness or recovering from an injury. A long-term health condition includes both physical and mental ill-health.

There are three requirements that define a long-term health condition:

• Their sickness absence from work lasts more than four weeks.
• Their ill-health involves an operation or recovery time.

Most businesses outline long-term sick absence as more than four weeks. But it's best to judge individual cases.

What is the difference between short-term and long-term sickness absence?

When an employee is off sick, their absence is classed as either short-term or long-term.

Short-term sickness absence

If the employee's absence is seven days or less, it counts as short-term sickness. They'll need to give a 'self-certification' that covers what their sickness was and if they're feeling better. They're not required to give a fit note.

The employee can give this verbally or in writing (as a letter or email). You could ask them to provide HMRC's SC2 form, but this isn't a legal requirement.

Long-term sickness absence

If the employee's absence is longer than seven days, it counts as long-term sickness.

They'll need to present a fit note from a healthcare professional. For example, the employee's GP or occupational therapist.

The fit note will state whether the employee is well enough to work again or needs more time to recover. The report can also include medical information that'll aid the employee's return. Like reasonable adjustments or referrals to occupational health (OH).

What is the law on long-term sickness absence?

There is no specific law that covers long-term sickness absence. However, there are relevant laws that touch on the subject.

Key employment law that employers must consider include:

• The Employment Rights Act 1996: This Employment Rights Act deals with dismissal and job termination due to ill-health. 
• The Equality Act 2010: This Equality Act covers employee rights when it comes to disability discrimination.

Are you entitled to statutory sick pay during long-term sickness leave?

Yes, employees may be entitled to statutory sick pay (SSP) during long-term sick leave. But only if they meet certain requirements.

As of 2023, SSP is £99.35 per week - for up to 28 weeks. To qualify for the sick pay entitlement, the employee must:

• Have an employment contract.
• Have done work under their contract.
• Have been sick four or more days in a row (including non-working days).
• Earn at least £123 per week.
• Provide notice and medical evidence proving their ill-health.

An employer cannot pay them less than the statutory amount for sick pay. But they can pay more, if their employment contract states so.

After 28 weeks, an employee may apply for Employment and Support Allowance (ESA) or Universal Credit (UC). This is a financial benefit that'll help them during time off from work.

Can you take long-term sick leave due to mental health conditions?

Yes, employees can take long-term sick leave due to mental health conditions.

A lot of the time, people assume long-term sick leave is used only for physical ill-health. But that's not the case: it can be used for ongoing mental illnesses.

Some of the most common conditions include anxiety, stress, and depression. At their worst, they can significantly impact a person's everyday life.

Every employer should treat mental health illnesses in the same format and seriousness as physical ones. The employee's line manager should inform them about what legal rights and benefits they have whilst on leave.

Can you dismiss an employee on long-term sick leave?

Yes, the employer can dismiss an employee on long-term sick leave. But you'll need to follow a legal and fair process beforehand.

Employers may start a medical capability dismissal process before letting anyone go. Further considerations are needed when it comes to employees with disabilities. If you neglect the laws, you could face disability discrimination and unfair dismissal claims.

How to manage employees on long-term sickness absence

Employers need to follow the right rules and laws when it comes to sick leave. And that goes for both short-term and long-term absences.

By doing so, you'll be able to support sick employees whilst they're recovering. And you'll be able to aid their return to work in the best manner.

Here are appropriate steps to consider when managing long-term sickness absence:

Create a long-term sickness absence policy

The first step employers should take is to create a long-term sickness absence policy.

This is a statement that shows what's expected from both the employer and employee during leave. Your policy should also include:

• Definition: What is long-term sickness absence? And, on average, how many days count as long-term? 
• Absence management: Who will cover the employee's duties during their absence?
• Employee benefits: Will employees receive sick pay? Who qualifies for it (and who doesn't)?
• Communication: Is the sick employee expected to keep in touch during their absence? Who should the employee contract in the first instance; and how?
• Return to work: How is the employee supposed to return to work? Will the employee need a phased return?

Legally, an employee doesn't have to inform you about any medical conditions. But make sure they're aware of why it's better to share it; as well as what support they'll receive.

Hold a long-term sickness absence meeting

Usually, when an employee is sick for a couple of days, you might call them to 'check in'. This can help to understand what their sickness is and the likely duration of their leave.

But it's a little different when it comes to a long-term absence management. Employers should hold a welfare meeting with them; either in person or virtually.

The main aim of this welfare meeting is to:

• Fully understand the employee’s health.
• Know how it's affecting the employee's ability to work. 
• Determine whether the employee can or cannot return.
• Provide support through a phased return.

Make a copy of the meeting notes and send it to the employee. This helps maintain a record of their absences and highlights your support means, too.

Update your absence records

If the sick employee mentions new symptoms or changes to their current illness, you should add them to their absence records.

Employers must keep these records up-to-date. That way, you'll be able to manage their sick leave rights.

Avoid mixing up sick days with their annual leave or time off for dependants. For example, being on extended leave to care for a sick family member. This counts as carers or annual leave - and not long-term sick leave.

So, make sure you keep these records separate. They should be treated fairly and shouldn't face warnings for their high absence numbers. If you discipline them for this, and they have a disability, it could lead to a discrimination claim.

Prepare for any impacts to your business

It's important that every employer provides support to sick employees from their first sickness absence. But that doesn't mean you should neglect your business.

Every employer should prepare for any potential business impacts due to an employee's absence. Think about who will cover their duties. Can their line-managers pick it up or will it overburden them?

Employers should think about any foreseeable future losses. This is especially important if the employee has a significant role within the business.

Can an employee return to work after long-term sick leave?

Yes, an employee can return to work after long-term sick leave.

The absent employee can provide medical evidence to initiate their imminent return, but it’s not a legal requirement.

They may provide a ‘fit note’ that will outline an employee’s fitness or whether they require any additional help. For example, safety glasses if they’ve recently had eye surgery. These reasonable adjustments will ease the employee’s return in the best manner.

Employers may even present them with a phased return to work plan. This is a guide on what the employee's temporary work tasks are. For example, offering later starts to avoid commuting during busy times.

During the phased return period, you could offer occupational health referrals. These specialists help with managing the employee's progress, obtaining medical advice, and dealing with trigger points during work.

What if an employee doesn't return after long-term sick leave?

Usually, the longer an employee is off sick, the harder it is to return to work.

Some employees might find it hard to come back and keep up with the demands of their job. An employer can reassure their support during their phased return through methods like:

• Welfare management.
• Mentoring (either short-term and long-term methods).
• Re-training. 
• Occupational health referrals.

If they still want to leave, you should respect the employee's wishes and make special considerations for them. For employees with disabilities, you'll need to keep providing reasonable adjustments up until their last work date.

Employers may start their medical capability dismissal process; but this should only be used as a last resort.

Make sure you follow a fair, legal process - showing your reasonable attempts throughout their phased return. If you neglect any legal steps, you could face disability discrimination and unfair dismissal claims at employment tribunals.

Get expert advice on long-term sickness absence with Peninsula

Long-term absences can be complicated and hard to manage. But it's important for employers to follow the legal rules.

That way, you'll be able to support employee's welfare whilst they're recovering. And help them return to work in the safest and healthiest conditions.

If you ignore the procedures, you could lose employees, pay compensation, and face huge business losses.

Peninsula offers expert advice on long-term sickness absence. Our HR team offers unlimited 24/7 HR employment services which are available 365 days a year.

Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.