The mishandling of a rehabilitation programme could result in employees initiating legal claims relating to alleged dismissal or discrimination, so here’s how to stay on the right side of thew law.
The staggering cost of employee absence to UK plc is £9 billion per year, according to The Sickness absence review, presented to government by Dame Carol Black, national director for Health at Work, and David Frost, former director general of the British Chambers of Commerce, in November 2011. So it is no wonder that employers are keen to get employees off their sickbeds and back to work as soon as possible.
But how can employers do so lawfully? After all, the mishandling of a rehabilitation programme could result in an employee initiating legal claims relating to alleged dismissal or discrimination.
Key to employers avoiding such claims is early intervention: this involves organisations consulting with absent employees and obtaining appropriate, up-to-date medical evidence on their condition as soon as possible. It also requires employers to act on this advice.
Trust very quickly breaks down when employers make assumptions about the health and needs of their employees. Sensing their employer’s disengagement, an employee consequently disengages and becomes defensive during any communication about their condition, which can lead to the rehabilitation process becoming much harder for employers to manage.
There is a correlation between the length of absence and the likelihood of continued absence, so employers should encourage their line managers to make and maintain contact with an absent employee to help build trust. Open discussions between an employee with their line manager about the nature of their illness and their absence, together with consideration of the organisation’s sickness absence policy and how to remove barriers to working, all increase the likelihood of an employee successfully returning to work.
But employers need to establish how and when to have contact with an absent employee, as well as consider how best to support them, both during their absence and if they return to the workplace. This can involve the offer of employee benefits such as Employee Assistance Programmes or other confidential care lines.
The provision of employee benefits such as private medical insurance may help to speed up an employee’s return to work and support their rehabilitation process in the event that NHS treatment is not available, or at least not within an acceptable timeframe.
Employers should also consider physiotherapy clinics and internal occupational health provision, which can to reduce the risk of employees going sick in the first place, as well as provide valuable onsite support for employees returning to the workplace after a period of absence.
Group income protection can help to provide long-term support for an employee who is unlikely to return to work. They might amount to reasonable adjustments, perhaps to an employee’s workstation to help an employer minimise the chance of an employee initiating a disability discrimination claim.
Above all, successful rehabilitation requires a co-ordinated approach between an employee’s line manager, the organisation’s HR director and the medical experts involved. In particular, line managers need to understand both their organisation’s rehabilitation policy and process, plus have the confidence to an employee’s condition, which comes from training and support, and the time required to devise a comprehensive rehabilitation plan.
It helps if managers fully understand and appreciate the benefits of helping an employee return to work – namely, that it can help minimise any loss of skill or experience, the time it takes to recruit a replacement employee and time involved in tribunals resulting from mishandled rehabilitation programmes.
The creation of a rehabilitation action plan with specific actions and a timeline is essential. All involved parties must understand what is expected of them, particularly where workplace adjustments, such as the introduction of flexible working, are required. Each and every stage of a rehabilitation programme should be documented and medical evidence should be kept up-to-date.
Contractual sick pay helps the employee financially, but it might be a disincentive to a return to work. Don’t be too generous. If sick pay is discretionary, be consistent in allowing or refusing. And always make all possible reasonable adjustments before reducing sick pay, because not to amounts to a failure to make a reasonable adjustment itself.
Of course rehabilitation will not happen where the medical advice indicates no likelihood of a return to work, or where the employee refuses to engage in the process. Ultimately, there will be a resignation, or dismissal on capability grounds.
However, taking these steps will leave the employer well placed to defend potential litigation. Adopting a positive approach to facilitating rehabilitation will also ensure that employee retains valuable resource, skills and experience while reducing the cost of sickness absence.
- Employers need to understand the underlying causes of employee sickness absence.
- Assumptions should never be made about employees health and wellbeing.
- A rehabilitation action plan with specific actions and a timeline is key to managing sickness absence.
Jonathan Chamberlain, employment partner at Wragge and Co