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Long-term sickness absence: when you need a medical report, why, and what you should ask

April 26, 2024

If recent reports are correct, long-term sickness absence is high. There could be many reasons for this and it is not for me to speculate on them but, as someone who regularly advises employers, I want to focus on the positive things that employers can do to address this issue in their workplace.

To be clear, I am not saying that employees are not to be believed or that absence should be minimised – far from it – and actually more difficulty can arise when employers adopt that sort of attitude, but what I often see in these cases is employers who are reluctant to deal with these issues, often due to lack of experience or because they are worried about liability which could attach, and so they ignore it or apply a very light touch for fear of being criticised.

This area is also fraught with potential discrimination issues as well which is why dealing with cases appropriately is so important.

Long-term absence?

There is no hard and fast rule as to what constitutes long-term absence and each case will vary but I would say that where an absence, for the same reason, lasts for around 2-3 months, or longer, it would likely fall into this category.

You will likely have internal reporting policies around absence and the provision of appropriate fit notes but the first thing I would say is communication, as in most things, is key. Check in with the employee regularly during their absence. Doing so is not unreasonable but don’t let this turn into an interrogation session. You can ask questions like: “how are you are feeling” and “has there been any change since we last spoke”. You may also have particular dates when you need to have formal absence review meetings where you ask similar questions. Follow your policy as much as possible.

You ultimately want to understand what is the prognosis, what are the likely next steps and what can you do to help? That is because you want to understand whether the employee can return to work and, if so, when and what you need to do to support that return. It may be, after speaking to the employee that you can decide on appropriate measures to support them back to work without further enquiry, but there are also scenarios where the prognosis will not be clear or the level of support is not initially obvious.

Medical reports

It is in those latter cases where you are going to have get the input of a medical professional. That is because, in the event that this proceeds towards a dismissal scenario, in order to show a fair dismissal, you need to have done three things:

  • Ascertained the up-to-date medical position;
  • Consulted with the employee concerned; and
  • Considered alternative employment.

The medical opinion could come from the employee’s GP (likely slightly cheaper but, given the pressure GPs currently face, might take a bit of time) or via the input of an occupational therapist (likely to cost a little more but will usually be a little quicker and they will probably be able to answer the questions on workplace issues or changes, on which a GP might not be so keen to comment).

The medical report is really important for you to understand the employee’s prognosis and what treatment (if any) they are receiving. It should also address whether they are able to return to work (and if not now, when), on what basis they can return (do you need to consider change of duties, shifts, or something else) and, whether their condition amounts to a disability under the Equality Act.  If disability is applicable, the report can advise whether there are any wider reasonable adjustments you need to make to their role.

Questions to ask

You want to get as much as you can from the medical report and so a lot of that comes down to the questions you ask. If you ask basic and simple questions to which the answer will be yes or no, then don’t be surprised if that is the response you get. Similarly in relation to the question of disability status if you ask “does the employee suffer from a disability” the response might be “that is ultimately a legal test, not a medical one”. A frustrating response where you genuinely want input to understand what you need to do.

On that basis, I usually suggest that you break these questions down rather than lumping them together, or you pose more specific questions rather than those which are more generic. For example, rather than asking “when will the employee be fit for work” to which the answer might be “it is difficult to predict at this time” you could instead ask “will the employee be fit for work within the next three months” to which you are likely (although never guaranteed) to get a more direct answer.

Similarly, in relation to the question of disability rather than asking “does the employee suffer from a disability” you could break the legal test down into parts and ask multiple questions like “what is the condition from which the employee suffers”, “has the employee suffered from this condition, or are they likely to suffer from the condition, for more than 12 months”, “what impact (in terms of severity) does the condition have on the employee” and “how does that impact their ability to carry out normal day to day activities”. Doing it in that way could help prevent an unhelpful answer.

If you do suspect that the employee’s condition is likely a disability, you might also want to consider asking questions about reasonable adjustments that you could make (or asking about those you think might be required that you cannot make) and ask the OT for their opinion on them and whether they would be necessary.

The idea is that, at the end of the process, you have a report which will tell you whether there is something you can do support the employee, and if so what, or whether there is nothing you can do meaning that dismissal may be something that has to be considered. From that you then decide on what action you need to take.

Remember that dismissal should always be a last resort and there are other considerations that you need to make so I would always suggest that you take legal advice before dismissing, particularly if there is a disability element to the case concerned.

If you would like advice on this or any other area of employment law, please contact the Blackadders Employment Law team with offices throughout Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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