COMMON MISTAKES EMPLOYERS MAKE
No contact with the Employee – Employers ignoring an employee when they are absent through ill health.
Employers often don’t act as they think they do not need to do anything and/or do not know what to do and are concerned with doing the wrong thing. Employers often fail to communicate with the Employee to fully understand the reason for absence and possible adjustments needed to enable the return to work of the employee. Hence, employees can often remain on sick leave for months, if not years. It is important for Employers to be aware that employees accrue holiday whilst they are on long term sick which is a cost to the Employer.
The level of contact
Employers are often worried about contacting employees when they are off sick. Employers are able to contact employees when they are off sick and indeed have an obligation to do so. In fact, if an employer did not make contact then the employee might assume that the employer is not bothered about their health. An employer cannot avoid this obligation by saying that the employee never contacted them. However, an employer does have to be careful about excessive contact as it would be inappropriate to bombard an employee with telephone calls and/or letters
Failing to realise the problem
In order to ensure that an ill-health dismissal is fair, an employer will need to show what reasonable steps have been taken to understand the employee’s medical condition and likely prognosis. In this respect, every effort should be made to obtain the employee’s consent to make enquiries of a medical practitioner to gain such an understanding. Employees cannot be compelled to undergo a medical examination or submit to disclosure of medical records unless they have agreed to it. However, if they refuse to consent, the employer will not be criticised, provided that they have attempted to obtain medical advice.
A lack of clarity
When contacting medical experts, it is important to understand the information required and to ensure that clear instructions are given to medical experts. This is so that the medical report answers the specific questions about the specific employee. If there is an inadequate report, employers need to go back to the expert. Employers also need to be aware that depending on the illness they may need a specialist rather than a GP report. A tribunal may consider that it was unreasonable to limit investigations to a medical expert who does not specialise in the relevant field. Further, a GP’s report may not contain a clear prognosis and an employer may be criticised if it dismisses on the basis of an unclear prognosis.
Not giving warnings
Employers need to ensure that they warn the employee that dismissal on the grounds of ill health could be contemplated if they do not return to work, if sufficiently fit. Also, they need to ensure that they meet with an employee before they dismiss them. In order to form a view on the likelihood of the employee’s return to work the employer must make reasonable enquiries. This means that the employee should be consulted fully so as to establish the reason for the absence and employee’s view of when he/she is likely to return to work. The employee should be made aware that the employer is contemplating dismissal if the employee does not return to work if deemed sufficiently fit to do so. This is not so much a disciplinary warning as giving the employee full notice of the potential outcome if his/her health does not improve.
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