In this guide we will discuss “how long does an employer have to hold your job for medical leave” and some considerations if you are an employer that has a fit note worried about getting sacked and if you are an employer then what you need to consider before firing an employee who is on medical leave.
How long does an employer have to hold your job for medical leave?
There is no simple answer for ‘How long does an employer have to hold your job for medical leave?’.
If you have a company or you are a business owner, you know how difficult it is to have success if your employees are not working and absenteeism is considered one of the major costs a company can have.
Employers know that managing long-term sickness absence can be difficult.
Many employers face this difficulty, either because they know their long-term sickness may amount to a disability and if they take some action they may face a discrimination claim or just because they don’t want to cause any unnecessary stress to an employee who is already dealing with a long-term illness.
According to ‘FCSA’, “it is important for employers to actively manage the situation and to be in a position to know if / when the employee in question is likely to return to work. In some cases, the employer may find itself in a position where it considers that it is simply unable to keep the employee’s position open any longer, particularly where there is uncertainty as to when the employee may return, and considering dismissal of the employee on the ground of capability.”
Dismissing an employee just on the ground of capability without considering other factors (even if the employee is not able to return to work or has an indefinite leave) such as whether the long-term illness is considered a disability and without enough evidence to show how the absence of this employee is having a detrimental effect on the business.
In some cases, it may be enough just using a simple statement where the employee’s absence is having a clear detrimental effect but in some others, specific difficulties may need to be pointed out.
For instance, difficulties related to the employee’s continued absence on the cost and disruption of having to hire a temporary replacement or having a shortage in the staff on the employee’s duties.
However, employers are not obliged to wait indefinitely to see whether an employee may or may not be fit to return to work “and a time comes when an employer is ‘entitled to some finality’.”
The FCSA points out how “in cases of long-term sickness absence it is important for employers to continue to monitor the situation, both in terms of seeking updates on the employee’s health but also by monitoring the effect of the employee’s continued absence on the business.”
Long-term vs Short-term
When an employee is sick or absent for a week or more, their employer would ask them to provide a fit note from a certified professional.
This will help understand the reason for being sick and the likelihood of how long the employee will be absent from their job duties.
If the sick leave is due to a long-term medical condition, employers need to determine if reasonable adjustments can be made to prevent any future absence.
If your long-term medical condition is considered as a disability it is necessary for your employer to maintain contact with you to offer support and make sure you have a smooth transition returning to home as soon as possible.
Medical conditions can also be associated with Short-term and intermittent absences.
If as an employer you have an employee that is usually requesting leave, encourage them (without forcing) to open up about their medical condition or the problems they may be facing so you can anticipate their needs and understand how you can offer support or make reasonable adjustments.
However, on occasion, there may be employees that abuse sick leave privileges so there could be time to re-evaluate your company’s policies and procedures on the subject.
Employer rights to medical records and proof of incapacitation
Many employees tend to ask if employers have the right to require medical evidence.
The answer to this is YES, they can but they need consent from the employee.
As mentioned by ‘Helix Law, “When creating your sick leave policy, it is important to require proof of illness/incapacitation, and to set a provision that allows employers to further request medical records with the employee’s consent.
As stated previously, medical records and sick leave data are considered sensitive personal information, and therefore are protected by the Data Protection Act 2018.”
This means that in order for your employer to request medical records from your GP, you must give consent in accordance with the Access to Personal Files and Medical Reports (Northern Ireland) Order of 1991.
If you are an employee, your employer needs to notify you in written form to be able to obtain your medical records.
Reasons you can be dismissed
Your employer may consider your dismissal under the following situations:
- Not being able to do your job properly
Your employee may think about terminating your contract if they consider you are no longer able to do your job properly, for example, if they have implemented a new tool or system at your workplace and you haven’t been able to cope with the changes or if you can’t get along with your colleagues.
However, before they consider taking any action they should follow the regular disciplinary procedures such as warning you about how your work is not satisfactory anymore or giving you a chance to improve (e.g. training).
- Persistent or Long-term illness
Your employer can consider your dismissal if you have been persistently ill or have a long-term illness that makes it impossible for you to perform your job.
However, before letting you go thet should look at alternative ways to support you or give you time so you can recover from your illness.
If you happen to have a disability, your employer has a legal duty to find ways to support your disability in your workplace and dismissing an employee with a disability may be considered as unlawful discrimination.
This seems to be one of the most common forms of dismissal and it is considered fair in most cases.
According to Gov.uk, “If the reason you are selected for redundancy is unfair then you will have been unfairly dismissed.”
Can my employer fire me due to long term sickness?
This is a very common question that many employees fear. It is common to think employers need to keep a sick employee’s job open indefinitely but in practice that is not the case.
However, the employer needs to follow a fair procedure to manage a long term absence situation or someone that has been off work under an ‘indefinite’ status.
If your employer proceeds with a dismissal, they will potentially have to show that your dismissal was justified and fair after exploring and exhausting all the options available to you.
Even if you have a disability (physical or mental) and you are currently being protected under the Equality Act, it doesn’t mean that they are unable to take action.
As ‘First Practice Management’ indicates, “A person has a disability if he or she has a physical or mental impairment which has a substantial and long–term adverse effect on that person’s ability to carry out normal day-to-day activities, typically lasting, or can be expected to last 12 months or more.”
Your employer must demonstrate that they have taken all the steps to facilitate your return to work, including looking at alternative duties, hours, roles, etc., when possible.
Why is this blog about how long does an employer has to hold your job for medical leave important?
Ultimately the answer to, ‘How long does an employer have to hold your job for medical leave?’ is ‘it really depends’ on various factors but there is no fixed amount of time determined where an employer should have to hold your job for medical leave.
However, it is important to be aware of the company policies regarding sick leave and all the procedures and if you are an employer, you need to also be aware of the employment rights, the Equality Act and employment laws when considering dismissing an employee due to long-term sickness.
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Frequently Asked Questions (FAQs) about how long does an employer have to hold your job for medical leave
How long can you be on the sick without losing your job?
There is not a specific answer for how long you can be off sick without losing your job.
However, some employers consider four weeks or more as a long-term sickness absence where they start considering dismissing an employee, but you are entitled to contest their decision.
Can my employer stop me from going homesick?
Some employers may not consider a cold or flu as a sufficient reason to send you home, but some others will definitely let you take the day off and go home to rest in order to prevent spreading the virus to your work colleagues or other employees.
Can I be sacked for being off sick in the UK?
Yes, in the UK you can be dismissed if you have a persistent long-term illness that makes it impossible for you to do your job.
However, before taking any formal actions, your employer shoudl exhaust all the available options for you to feel better at work, for instance, they can consider changing your job position or role if they determine it is the reason that is making you feel sick.
Can your boss say no if you call in sick?
Your boss may try to persuade you to go to work if you do not have a sick note and you haven’t been sick for more than 7 days.
However, you are not obliged to go to work if you are feeling sick.
If you have been off for 7+ days then you need a sick note from your GP so you can remain off work.
If you have a sick note for 5 days but you feel better on day 3, it is really up to you if you want to go back to work or not.
How long do you have to hold an employee’s job?
How long an employee can hold your job will actually depend on many factors.
For instance, the terms and conditions stipulated in your contract about sick pay, redundancy pay or how much warning (notice) your employer must give you if you’re dismissed.
Employers may initiate a dismissal on the ground of long-term sickness (if that is the case) and how you are not able to perform your job anymore.
Gov.uk: “Dismissal: your rights”
Buck, E. (2014, Feb.) Can an employer dismiss an employee due to long-term sickness?. Retrieved from Firstpracticemanagement.co.uk.
Fcsa.org.uk: “Advice For Employers On Long-Term Sickness Absence”
Helix-law.co.uk: “Managing Sick Leave In the UK”