Long-term sickness plagues Scotland

Hospital waiting times, an ageing working population, poor mental health, the impact of the pandemic and a worsening trend in specific health conditions are contributing to this crisis.

Employees are struggling with worries over their health and job security, while employers are grappling with concerns about the wellbeing of their employees as well as keeping their businesses running efficiently with a reduced workforce.

Drilling down into individual cases that have accumulated into this nationwide issue, it’s clear that long-term absences are incredibly nuanced and complex. Above all, they must be treated sensitively.

Liam Entwistle, a dispute resolution solicitor specialising in employment law at Wright, Johnston & Mackenzie, says although he has not experienced a sharp uptick in client enquiries on this issue very recently, it has always been one of his most common sources of enquiry.

While there are many procedures and legal practices in place to navigate these situations and protect all parties, how to effectively resolve the challenges associated with a long-term absence is not black and white.

Lindsey Cartwright, partner and accredited specialist in employment law at Morton Fraser MacRoberts, has been advising clients and representing them at the Employment Tribunal for 25 years.

She says: “We have seen an increase in the number of enquiries on this issue and have also seen a rise in the number of absence cases being related to mental health … the economic conditions are now such that they [employers] can no longer afford to keep being so patient and tolerant.”

With so many people currently unable to work in Scotland, the economy is footing the bill to the sum of £870m.

The longer the period of illness, the more challenging the return to work becomes. This can cause a great deal of anxiety for the employee. To ease the transition, employees may choose to instigate a conversation with their employer about a phased return with reasonable accommodations and a gradual increase in duties. Entwistle says: “A good occupational health report is extremely helpful, if not necessary. Employees should always cooperate with providing medical information and should be as open as possible with medical professionals and their employer.”

Entwistle explains that the main barrier tends to be in relation to trust. If employees are reluctant or slow to share information which they feel may result in termination, employers face more challenges in supporting their return to work.

Cartwright says: “When an employer genuinely wants to find a way to help the person back to work, you see an entirely different approach taken compared with when you can tell that the employer has moved on and is using the process to simply draw a line under the particular employee.”

The latter can be a particularly harsh experience for employees suffering with mental health conditions. In many cases, a lawyer who listens and empathetically explains their rights is enough to make a huge difference to employees who feel they have been unfairly treated. With so many accumulating challenges and emotions contributing to tensions in these cases, it’s important that all parties seek legal advice.

Crucially, in the case of multiple long-term absences regarding one employee, this could indicate the presence of a disability. In this case, the employee has access to the protections of the Equality Act 2010. Without seeking legal advice, the employee may be unaware of this.

With the core challenges associated with long-term absences coming from a reduction in productivity and an unsettled workforce, employers should consider implementing progressive sickness policies that go beyond a bare minimum reporting procedure. These measures can include: return to work interviews, ensuring robust information is available to the right people (within the confines of data protection) and encouraging regular, casual communication to strengthen trust and rapport in workplace relationships.

When an employee has a long-term absence from work, employers should get professional advice early. This is important not only to protect the business but to ensure they’re not infringing on the employee’s rights or creating a hostile work environment in which the employee feels fearful of discrimination.

To cope with absences, many companies turn to agency work to fill the void. But Cartwright says: “Recruiting new people is expensive and time-intensive, so use that resource, instead, to help the people you already have in place.”

For fellow employment lawyers looking to understand how to effectively handle disputes regarding long-term sickness, Cartwright says: “Speak to other professionals, whether other employment lawyers, occupational health physicians or human resources professionals etc, to share ideas and knowledge. And if your client is being inhumane, because sometimes the pressure on them from above stops them acting rationally, be honest with them about how it looks and how much damage it might do to their reputation.” She also places an emphasis on encouraging your client to consider not just what they legally have to do but what the right thing to do is for the wellbeing and fair treatment of everyone involved.

Managing disputes in a way that meets the needs of both employers and employees must start with clear, honest communication between both parties. With a conscious effort to listen to and understand the other’s perspective, tensions that could otherwise spiral can be diffused.

With legal experts, health professionals and data analysts predicting a continuing long-term issue around workplace absences, businesses and individuals can benefit from prioritising education, empathy and preparation for these events.

Written by Sophie Campbell