Managing long-term sickness absence fairly

Long-term sickness absence — typically defined as absence lasting four weeks or more — is one of the most sensitive HR situations a manager faces. The employee is unwell. The business needs are real. The legal obligations are significant. Getting this wrong can result in disability discrimination claims, unfair dismissal claims, or both. Getting it right means the employee feels supported, the business is protected, and the situation is resolved fairly.

The first obligation is to stay in contact. An employee on long-term sick leave should not feel abandoned. Regular, brief, supportive contact — a text, a call, or a brief email — demonstrates that the employer cares and keeps the employee connected to the workplace. The frequency and format should be agreed with the employee: some want weekly contact, some find it intrusive. Ask.

The second obligation is to arrange an occupational health (OH) referral. Occupational health provides an independent assessment of the employee's condition, likely return date, and any adjustments that would support a return to work. OH reports are not binding — they are advisory — but they provide an evidence base for decision-making. An OH report that says the employee is unlikely to return to full duties for 12 months is important information that affects the employer's response.

Reasonable adjustments must be considered where the condition amounts to a disability under the Equality Act. A disability is a physical or mental impairment that has a substantial and long-term adverse effect on normal day-to-day activities. "Long-term" means lasting or likely to last 12 months or more, or likely to recur. Many conditions that cause long-term absences — depression, chronic back pain, cancer, MS — are likely to meet this definition. The duty to make reasonable adjustments is proactive: the employer must consider adjustments even if the employee has not specifically requested them.

A return to work plan should be developed when a return becomes possible. Phased returns — working reduced hours or on lighter duties for an agreed period — are a common and reasonable adjustment. The plan should have clear milestones, a realistic timeline, and a defined review date.

Capability dismissal — dismissal on grounds of incapacity — is a fair reason for dismissal where an employee is genuinely unable to perform the work their role requires. But it requires a fair process: evidence of the medical position (usually via OH), consultation with the employee about the situation and options, consideration of adjustments, and a genuine attempt to explore alternatives. A capability dismissal without this process is likely to be unfair.

For employees on long-term sick leave who have a disability, the standard of the process is higher. Dismissing a disabled employee without exhausting all reasonable adjustments is likely to constitute disability discrimination as well as unfair dismissal.

See our return to work interviews guide for the first-day-back process, and statutory sick pay employer guide for SSP during extended absences.

Mellow tracks long-term absence cases, OH referral status, and return-to-work plans for each employee. [See Mellow pricing →](https://mellowhr.com/pricing)