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The Need to Take a Sensitive Approach to Sick Leave
Adrian Fryer
In the recent employment tribunal case of Robinson v Middlesex Learning Trust, a teacher received almost £140,000 compensation after her employer failed to take a sensitive approach to her sickness absence.
Ms Robinson was employed on a one year fixed-term contract to teach design and technology at the Trust. After only a few weeks in post, she went off ill with sciatica. She had an operation and was off for several months whilst she recovered. She came back to work for a short period of time before going off sick again, this time with migraines. It was accepted that she was a disabled person under Equality Act 2010. Her contract was not renewed at the end of her one-year fixed term. The reason given was a reduction in funding for design and technology teaching.
The employment tribunal held that the Trust had subjected Ms Robinson to harassment related to her disability in the insensitive way it had handled her illness. In particular:
- Holding a sickness absence meeting where six staff members attended was found to be hostile conduct.
- Telling Ms Robinson that students and staff had suffered as a result of her absence and that she had let them down amounted to disability-related harassment.
- Suggesting that Ms Robinson had tactically returned to work for a short period of time in order to maximise sick pay was also an act of harassment.
- Failing to renew Ms Robinson’s fixed term contract was found to be for a reason related to her disability. The tribunal found that it would have been renewed if she had not had periods of absence.
This is an extreme example of an unwell employee having to deal with an unsupportive workplace. However, this case can give other employers pointers of what not to do when dealing with employees who are off work:
- Think carefully about the conduct of sickness absence meetings. The environment should be a supportive one – focused on enabling the employee to return to work if possible.
- Even if you are thinking it, do not openly allege that the employee might be ‘gaming’ the system to maximise sick pay. If an employee is genuinely unwell, this is highly insensitive. If there are concerns that the absence is not genuine, then investigate this separately. Do not make off-hand comments. Equally, if ‘gaming’ the system to maximise sick pay is an issue for your organisation, consider altering your policy so that employees have to return to work for a minimum continuous period before sick pay entitlement renews.
- Whilst the pressures that an absence are placing on a business can become an important consideration at the point at which a sickness absence issue is being evaluated for the purposes of a capability dismissal, it is not reasonable or fair to criticise a genuinely ill employee for the impact their absence is having on the workplace outside of this context. It could, as in this case, be seen as intimidating and hostile behaviour.
- Having a clear capability policy which sets out the format of sickness absence meetings and other dealings with an absent employee may have avoided many of the issues which arose in this case. It is unlikely that an employer’s written policy would suggest that six employer representatives should attend a sickness absence meeting!