Many small businesses are often hit particularly hard by staff absence, with some larger SME’s having to shell out tens of thousands per year as a result. Managing sickness can be tricky, particularly where an employee has a medical condition or disability. In this blog, Heather Bailey describes fatal mistakes employers make when it comes to managing sickness in the workplace and what they can do to prevent these mistakes from happening.
I recently advised on a case which saw Miss K, the employee in this case, who won her case at an employment tribunal. Ms K has fibromyalgia, a painful condition which causes fatigue and loss of concentration. She was employed as part-time receptionist by a medium sized GP practice who were aware of her condition. Following a change of medication she experienced a flare up of symptoms which affected her performance at work.
This situation is common with employees who develop or have a long term medical condition. Unfortunately the employer made several fatal mistakes in managing her case that could have been easily avoided.
Fatal Mistake #1 They told her to get a sick note
The employee had asked to reduce her hours on one day to help manage her symptoms of fatigue, this was ignored and she was told to be signed off sick. The employee duly did what she was told only to be later unfairly dismissed for long term sickness. Employers often labour under the misunderstanding that if an employee is experiencing symptoms they need to be off sick, when in fact this is a grey area. If an employee does have a fitnote which recommends adjustments an employer should consider whether these can be put in place, it is only if they are impractical the employee can be sent home sick otherwise the employer can find themselves paying for lost earnings.
Fatal Mistake #2 They did not listen to medical advice
The employer in this case did seek an occupational health report, which recommended the small reduction in hours as suggested by the client. The report also suggested that a change in medication would improve her symptoms and suggested a follow up report be obtained. The employer could not show that it had considered any of the recommendations and did not seek a follow up report. Whilst sickness can be a burden on a small employer, obtaining a follow up report a few weeks later would have provided them with the green light to either dismiss the employee fairly or help her return to work.
Fatal Mistake #3 They could not show that the required adjustment was unreasonable
An employer should consider making reasonable adjustments for disabled employees. What is reasonable does depend on the size and resources available to the employer and may take a little creative thinking. Ms K was requesting an earlier finish one of the three days she worked. Being able to leave 2 hours earlier would have given her the rest she needed. Ms K was not the only receptionist and there were other members of staff who could provide cover so therefore the employer came unstuck when it refused to even trial these adjustments.
Fatal Mistake #4 They failed to manage the performance and medical issues separately
When Ms K appealed her case, the employer mentioned that the adjustments would not improve her performance which was substandard. If an employee is not performing to the required standard, even with reasonable adjustments, they can be fairly dismissed provided that the correct process is followed. In this case, the employer would have been expected to implement and monitor the adjustments and then issue a series of warnings and a performance improvement plan. However, in Miss K’s case her employer tried to sidestep that process and it cost them dearly.
The Final Word
Having an employee off sick can cause a significant dent in the profits of a small business and any savvy business owner will always keep their eye on the big picture. In this case, carefully monitoring the adjustments and an investment of a further medical report would have saved the employer over £30,000 in compensation, lost resources and recruitment.