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Management Services Winter 2012
means it is not uncommon for the specialist to hear, and be persuaded by, the employee’s perspective on their health and ability to work, without properly understanding the employer’s.
Employers should make it a priority to communicate with the specialist, in advance of the patient review, to ensure that the specialist has a clear understanding of the requirements of the employee’s role, the nature of the work environment and the constraints upon the employer to modify these features. For example, if the
employee is a sales executive on sick leave for depression, exacerbated by stress and the employer must increase the employee’s sales targets by 15% or the business goes under, it may not be feasible for the employer to hold the employee’s job open or to enable the employee to return on reduced targets or hours. If the specialist does not know the financial pressures on the business they may advise a reduction of the sales executive’s targets to reduce stress. The employer, upon receipt of the specialist’s advice to reduce targets, will be on the back foot, explaining why they reject the
advice on business grounds. This can lead to unpleasant and unhelpful disputes between the specialist and the employer, which can undermine the relationship of trust with the employee.
Recession-proof policies The current economic troubles mean employers should be looking to make their contractual terms and employment policies as recession-proof as possible. Policies that may have been sustainable in boom times may be impracticable now. If the employer pays over and above statutory sick leave, can they afford to do this and, if so, have they retained the ability to stop such payments? Does the sick pay policy set out how any discretion is exercised and, once exercised, the circumstances in which the discretion to pay sick pay will be reviewed and stopped and on what notice to the employee?
Does the employer restrict the ability to carry over holiday from one year to the other and, for those on sick leave, is the ability to carry over restricted to the minimum holiday allowance permitted under statute, rather than any enhanced
holiday allowance under the contract?
If the employer operates a bonus scheme, is the entitlement to bonus moderated if the employee is on sick leave for a lengthy period of time?
Are employers engaging in home visits? These are valuable to monitor the progress of the employee and to signal to the employee that they are of value so that a relationship of trust is maintained, conducive to honest discussions about the employee’s recovery and the likelihood of returning to work within a reasonable time taking into account the needs of the business. The employer should also consult regularly with their employees covering for sick colleagues to ensure that they are not over burdened.
Clear communication The UK government is concerned about the way in which the European Court of Justice has interpreted the holiday entitlement of those on sick leave, and there is a conflict between the Working Time Directive and the UK’s Working Time Regulations. This is currently under review. Most employers though will
Sick leave
wish to avoid legal disputes with employees about the interpretation of the conflict between UK and European law. Instead it is more pragmatic to communicate clearly with employees about the economic pressures that the employer is experiencing, what the employer can and cannot afford to do if an employee goes on sick leave and to maintain a regular and candid dialogue with the employee during sick leave. This must be done whilst ensuring that employment contracts and policies are able to withstand the current vagaries of European law and enable the employer to make decisions that are fair both to the employee and the stability of the employer’s business.
About the author
Madeleine Thomson is Head of Employment Law at Hamlins LLP and acts predominantly for employers. Her clients span a wide range of sectors including construction, manufacturing, retail, insurance, travel, education and professional services. Email: mthomson@
hamlins.co.uk. T: 0207 355 6000. Website: www.
hamlins.co.uk
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