Employers often have to negotiate a potential minefield when dealing with a long-term sick employee. Tackling such a situation can be risky and difficult and they could face a claim for unfair dismissal or disability discrimination.

Employers need to establish what the employee’s condition and prognosis are and carry out regular reviews for a prolonged period of absence. They should ensure that regular medical certificates are supplied by the employee and have a term in their staff contracts stating that company sick pay is dependant upon the company receiving sick certificates..

Employers should make enquiries of the employee personally and obtain a medical report from the employee’s G.P or an independent medical expert. Employers must obtain the employee’s consent to obtain the report in accordance with the Access to Medical Records legislation.

The doctor or expert should be asked to comment on the impact of the illness on the employee’s ability to carry out day to day activities, the likely length of the illness, the impact on the employee’s ability to do his or her job and whether any adjustments can be made for that purpose.

In terms of any disability, a duty to consider making reasonable adjustments to the employee’s work responsibilities commences as soon as it becomes apparent that the employee’s condition is substantial and may last 12 months or more.

Employers should also regularly review the financial impact on the business and any adverse practical consequences of an employee’s absence or inability to perform their job and these should be discussed, when appropriate, with the employee.

One way to ensure that a potentially difficult employee is managed properly is to ensure that their contract obliges them to co-operate with any investigations into sickness and with medical examinations. Provision should also be included in the contract, reserving the employer’s right to make decisions in the employee’s absence.

For information or assistance with drafting or altering your staff contracts or handbook please contact Andrew Egan on 01793 511055 or andrew.egan@clmlaw.co.uk