An employee has had a car accident and is having regular trips to the osteopath. The osteopath is able to take appointments during working hours only, and this means regular absence from the workplace, but we're a small team and it's difficult to cover for this absence. Can I insist he attends appointments in his own time or makes up the time?
Employees have a number of rights in relation to periods of ill health. They may have a right to sick leave, depending on the prognosis, and as a result, a right to statutory sick pay or additional sick pay provided by the employer under the employment contract. Employees are also entitled to relevant protections under health and safety legislation.
If the employee's condition is likely to last for 12 months or more, they may be classified as disabled for the purposes of the Disability Discrimination Act 1995. It is unlawful for an employer to discriminate against a disabled employee by dismissing them, or subjecting them to other detriment.
The employer also has a duty to make reasonable adjustments to premises and working practices to prevent a disabled employee from being placed at a substantial disadvantage. An employer must allow a disabled employee time off work to attend medical appointments connected with the disability.
If the individual is not disabled but wishes to attend a one-off medical appointment, the employer is not, as a general rule, required to allow the employee to take time off work to attend the appointment. They may want to insist that the employee attends the appointment out of hours, takes annual leave to attend, or attends during working hours on condition that he/she makes up the working time later.
This basic position is likely to be altered by health and safety considerations, common law duties, the employee's contract of employment and/or the employer's policy on sickness absence.
Most employers are prepared to adopt a flexible approach and rather than prohibiting appointments during working hours, they encourage employees to arrange medical appointments at the beginning or end of the working day or during a lunch break. Any policy should also explain the need for employees to provide their colleagues with advance notice of any appointment so that cover can be arranged.
The employer should always ensure that any decision in response to a request for time off doesn't jeopardise the health and safety of the employee concerned or of any other affected employees. It will be particularly important for the employer to ensure that its policy on attending medical appointments is consistently applied.
- Anticipate situations such as this and have clear policies in place to deal with them.
- Encourage full and frank discussion with the employee from an early stage.
- Consider the frequency and pattern of requests for time off.
- Make sure the employee provides genuine medical evidence in support of the need to attend the appointment, explaining the condition and its likely duration.
- Where appropriate, consult with the employee as to the best return-to-work plan: it might, for example, be sensible for the employee to resume work on a part-time basis and receive more intensive osteopathy while not working full-time.
- After a lengthy absence, a return-to-work interview is usually helpful for both managers and the employee.
It may be necessary to put temporary cover in place to safeguard the welfare of other employees and to prevent staff covering the absence from working excessive hours.
Karen Black, Partner and head of employment at Boodle Hatfield solicitors 020 7079 8181 email@example.com