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By Spencers Solicitors

  Philip McCabe    
  February 20, 2017

When you forget about an employee...

Whilst Mr Garcia, a Spanish civil servant who failed to turn up for work for "at least" six years until he was caught after becoming eligible for a long service award is an extreme example, it can be a case of ‘out of sight out of mind’ when it comes to employees who are absent from work – especially on long-term sick leave. Budgets can be rearranged to accommodate cover and if there are changes in HR and management then the absent employee can easily be overlooked. It happens more often than you think.

Most employers appreciate best practice includes regular home visits, inclusion in social and news events and referral to the employer’s occupational health professionals and reasonable adjustments to help the employee back to work. But what should a business do if they discover someone who has been off for the last year without any contact?

Empty Desk

Many employers immediately think an easy way out is to say the employee left sometime in the past. The legal term is “frustration of contract”. For a contract to stand any chance be terminated through ‘frustration’ there can be no contact at all between the parties and it can nearly always be guaranteed there has been something: the annual P60, pension update, sick notes...all of which show that the contractual relationship is still alive.

The first step to take back control is to gather information. Is this employee still being paid? Is it Statutory Sick Pay or something enhanced/discretionary or perhaps they are receiving payments under a company funded permanent health insurance (PHI) scheme? It is not uncommon for someone to have forgotten to take them off payroll when their company sick pay was exhausted.

If the employee receives PHI and is being managed by the your insurance company, they are likely to be carrying out regular assessments and be in contact with the employee, then there is generally nothing further for you to do. Unless there is a specific provision to the contrary in their contract, there is an implied term that an employer will not dismiss an employee who is in receipt of permanent health insurance payments because once dismissed, the employee is no longer entitled to payments under the PHI scheme.

Difficult decisions will need to be taken in situations where PHI is paid but for a limited amount of time where the employee is unable to work despite reasonable adjustments.

Whatever an employee’s situation, it is important to understand exactly what their ailment and prognosis is. A referral to occupational health is a starting point. If the employee has been forgotten about then be honest and say so, quickly followed by an apology and an offer to do a home visit and to talk to them about how they are. If they have been overpaid sick pay, then their first question will be ‘do I have to pay it back?’ Legally the answer to this might be yes, practically the answer is usually no.

However, if the employee is still entitled to receive company sick pay, and it has not yet been exhausted, then dismissing them on ill-health grounds could be unfair dismissal. Tribunals often take the view that the whole idea of sick pay is to enable an employee to recover. There may be difficult cases when it is clear that an employee, very early on, is never going to recover and so not able to fulfil their part of the employment contract.

Another key consideration is the risk of disability discrimination. A ‘disability’ under the Equality Act 2010 is a mental or physical impairment which has a long term, substantial and adverse effect on their ability to carry out normal day to day activities. Long term means that it has lasted or is likely to last for at least 12 months. So, if the employee has already been away for 12 months then it is much more likely that they will be considered to have a disability. Whilst some conditions are automatically a disability such as cancer and other progressive illnesses. Other conditions which have been serious enough to keep an employee out of the workplace, is potentially going to be a disability.

Whilst the law does not require employers to continue to employ those who are unable to carry out the role they have been employed to do, if they have a disability then you will be expected to make reasonable adjustments to any part of their role which places them at a disadvantage compared to those without disabilities.

Finally, dismissing an employee on ill-health or capability grounds will likely be unfair (and potentially discriminatory) unless an employer has medical evidence to support their view the fact that the employee will be unable to return to work within a reasonable period, despite reasonable adjustments.

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