Keeping in contact with an employee who is absent from work due to illness

  • Posted

I recently read an article about a worker who had sadly committed suicide after repeatedly being contacted by his employer whilst he was signed off work with work-related stress. This reminded me of conversations that I’ve had with employer clients over the years about how often they should contact an employee or worker signed off work due to illness. Should it be weekly, fortnightly, monthly, at the end of the sickness period, or not at all?

Whilst regular contact with an employee who is signed off from work should be maintained, it’s important to strike a balance between showing concern and support and ensuring that no pressure is placed on them to feel they should return to work.

Maintaining regular contact in this situation is vital for several reasons. From a legal perspective, an employer owes a duty of care to its employees which includes taking reasonable steps to provide a safe workplace and safe system of work. In order for the employer to fulfil its legal obligation, they should have knowledge of any physical or mental conditions that may impact on the employee. Equally, interaction enables the employer to gain a better understanding of the employee’s condition and take a view of whether it could constitute a disability under the Equality Act 2010. If it does, then the employer has a statutory duty to make reasonable adjustments and failure to do so could result in a discrimination claim.

Furthermore, from an operational and pragmatic perspective, keeping up to date with the employee’s condition enables the employer to manage the business, both on an interim basis and for future forecasting, and allows them to distribute work appropriately. If the absence is likely to be for an extended duration, then it may be possible to engage temporary cover to complete a project or assignment within a required timescales.

The amount of contact during the absence period should be “appropriate” and determined on a case by case basis. The employee’s role, size and culture of the business, sickness absence policy and reason for the absence are all factors to be considered when deciding what is “appropriate.” For instance, if someone is diagnosed with stage 4 cancer then there may be little point maintaining weekly contact with the employee as there is unlikely to be much a change in their condition in that period. Another example is where a business is very small and a key person is absent. It may be appropriate to contact them more frequently or unexpectedly (depending on the reason for absence) as you may require access to specific documents. Where someone is absent due to a work-related reason, for example work-related stress, then it may be sensible to limit the amount of contact as there is a risk that continued contact could exacerbate the condition, potentially resulting in claims.

Contact should not be intrusive and, whilst care must be taken to ensure compliance with policies and procedures, employers can agree with the employee the regularity of contact and the form this will take. I would suggest that if someone is signed off for a month then, depending on the individual circumstances, there may be little benefit in contacting them a fortnight into their absence and appropriate contact in that instance may well be towards the end of the period. That said, if someone was signed off for a longer period, it may be reasonable to arrange regular contact rather than wait until the sick note is due to expire. In all cases, an employer should be proactive in contacting employees for updates.

In circumstances where an employee is signed off work for work-related stress, I have known employees to obtain correspondence from a medical practitioner to support their assertion that contact with their employer of any description, and at any frequency, exacerbates their condition. In this instance it may be sensible to identify a third party (usually a spouse or someone with whom they have a close relationship) with whom you can liaise for updates.

Contact with employees on maternity leave

Whilst on the topic of contact, I’m also often asked whether an employer can communicate with an employee when she is on maternity leave. The simple answer is yes.

By law, there is a provision allowing “reasonable contact” from time to time between an employee and employer during the employee’s maternity leave. Again, the question of what is “reasonable” will be decided on a case by case basis dependent on individual circumstances.

It is recommended that prior to commencing maternity leave, the employer has a conversation with the employee to agree how much contact she would like, her preferred method contacted and what she would like to be included in i.e. news updates, social events, training opportunities etc. However, care should be taken to ensure she does not feel pressurised into attending any events during her maternity leave.

Information regarding promotional opportunities and job vacancies should be given to the employee otherwise the employer is at risk of a claim for less favourable treatment.

Finally, the employee does have the option of exercising up to ten “keeping-in-touch” (KIT) days which allow her to complete paid work for the employer. The intention of KIT days is to ease the employee back into the workplace, for example by attending seminars or team meetings, and they are usually exercised just prior to the employee returning to their regular work pattern. KIT days are not mandatory.

Should you have any questions in respect of any of the issues raised in this article then please do not hesitate to contact us.