The Employment Law Pod

Balancing business needs and employee wellbeing in sickness absence

• Boyes Turner

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In this episode of The Employment Law Pod, Andrew Whiteaker is joined by Julie Marsh, Partner in the Clinical Negligence team, to explore the challenges around managing long-term sickness absence.

Together, they discuss:

  • The realities employees face after serious illness or injury.
  • Why early communication between employers and employees matters.
  • The role of medical evidence and occupational health in fair decision-making.
  • What “reasonable adjustments” really mean under the Equality Act.
  • Practical steps for employers to support a fair and lawful return-to-work process.

Discover how additional resources like Employee Assistance Programs and private medical insurance can support recovery, and why signposting employees to appropriate legal advice might provide crucial financial security when return to work proves impossible.

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Andrew Whiteaker: 0:03

Hello and welcome to the Employment Law Pod from Boyes Turner. My name's Andy Whittaker, and I'm a partner in the Employment Team. Now, normally on the Employment Law Pod, what we like to do is talk about recent cases or legislation or delve into our case book about anything that we think is interesting or topical or might be worth having a chat about. And one of the things that we are seeing at the moment within our team is lots of inquiries about managing individuals who are absent from work as a result of ill health and especially long-term ill health. Now, generally, we act within the Boyes Turner team for employers, and we often see things from an HR perspective and see it from the business's perspective as to how you manage that. But it's always really, really important to also consider how this impacts upon the individual and the experiences they might have. If we're going to make some fair decisions, we need to incorporate both the views of the business and also the individual. 

So today I'm very happy to say that I'm joined by my colleague Julie Marsh, who's a partner in our clinical negligence team. Hi, Julie.

Julie Marsh: 1:02

Hi, Andy. Thanks for having me.

Andrew Whiteaker: 1:03

No worries at all. And look, the reason we're here is that for you, you see it from the other side of the of the of the perspective, if you like. You're supporting individuals who are experiencing those significant or lengthy periods of time off work. In your case, specifically as a result of clinical negligence, but I suspect a lot of the experiences they have and the challenges they have going back to work will be comparable to people who are opt for work for other reasons as well.

Julie Marsh: 1:30

Yeah, absolutely. So in terms of long-term sickness, cancer treatment, you know, all these people who are looking to return to work are facing similar issues. So my role, as you say, I'm a medical negligence lawyer. I act for people who suffered serious injury as a result of poor medical treatment. My area of specialism predominantly is in spinal cord injury work, but I also represent clients who've experienced amputation as a result of poor medical treatment, or in some cases, some degree of traumatic brain injury, as well as poor results of sepsis or infection, which can have significant impact on their overall health and obviously impact their ability to get back to normal life, and that involves work.

Andrew Whiteaker: 2:15

Absolutely. So so to kick off then, what are the sort of the key challenges that your clients tend to experience when they're looking at a possible return to work or trying to establish when they might be able to return to work?

Julie Marsh: 2:28

So I think about it in three stages really when I'm thinking about clients. So often I'm contacted quite early on. So things have happened quite recently. There's usually a period of intense trauma, a significant period of ill health. Sometimes there's a period of hospitalization. Sometimes there's a transition into a rehabilitation setting and then a transition to home. So that kind of intensive period, a lot of my clients are not really thinking about work. They're not actually really thinking about anything other than surviving day-to-day, adapting to what life looks like and how life has changed for them.

Andrew Whiteaker: 3:07

And I guess that's a really important thing for employers to think about as well, because we know there's rules around self-reporting and getting medical certificates, and we don't need to go into the detail about what needs to be done there. But from an employer's perspective, you want to know what's going on. You want to understand what the situation with the employee, but they might be in a position where really it's really difficult for them to talk and they might not be able to share much information either or have any certainty.

Julie Marsh: 3:31

Absolutely. I mean, these are life-changing injuries. You know, imagine being a fit and able individual who enjoys sport on a casual basis and who's in a relatively manual job, for example, somebody like that who sustains a spinal cord injury might find themselves paralysed from the waist down. They might have to be thinking about how they're going to be managing their bowel and their bladder in the future, how their personal care is going to be affected, what their mobility might be. And there's quite protracted periods of recovery for these serious injuries. So, in an amputation example, somebody might need revision surgery. There might be infection, there might be wound healing, all of which means they're in a quite closed-off hospital setting, restricted access for family visiting, and their priority is probably not going to be communication with an employer beyond I'm not going to be in this has happened, which may well even come from family. And that probably will be the extent of their thought process in those early days.

Andrew Whiteaker: 4:32

Yeah, and I guess also if you're dealing with someone who has been absent for a particular reason, maybe they have a chronic back issue, or maybe they maybe they they fallen, they've broken their legs, something like that, then there's probably just one expert that they need to get information about to understand what that what the restrictions are might be on that individual, a sort of prognosis and diagnosis. But with individuals with really complex set of challenges, actually getting an overall view of how that's impacting on the individual and what they can and can't do is more complicated than just asking for a GP certificate.

Julie Marsh: 5:10

Absolutely. And actually, within those medical settings, some of those clinicians involved in the overall care, the MDT, the multidisciplinary team around that patient, might actually not want to be giving too much information to the patient at an early stage because it actually can have a detrimental effect. So actually, the patient may not have the full gambit of information to be able to give to the employer. So, yeah, that's a really important point.

Andrew Whiteaker: 5:37

Yeah, and and the reality is as well, if you're an employer and you've had someone who's had one of the sort of catastrophic injury or ill some sort of illness that's affected them in a substantial way, you're not really going to be able to make any decisions in those first couple of months anyway. You just need to back off a bit, give them a bit of time, take, yeah, take a breath and give the opportunity for there to be a bit more clarity about the impact of this on the individual in the medium to long term.

Julie Marsh: 6:04

Yeah, I think that's really important. I think those that have have suffered a significant serious injury will already be feeling a degree of pressure. They're already dealing with significant change to what their life looked like beforehand. They don't really need the added phone calls, emails, messages from employers, bugging for information. That just applies pressure to a situation and I think can quite quickly result in relationship breakdown.

Andrew Whiteaker: 6:31

Yeah, but there's always that challenge, isn't there? I mean, we often have conversations with clients about how frequently they should be in contact with individuals. And when you're managing someone's sickness absence, you are doing exactly that. You are managing it. So it's not appropriate for you to just call in on them, find out how they are, get an email or say, all right, we'll speak again in four months. You know, you need to keep that avenue of communication open, but at the same time, ringing them every couple of days, emailing them every every Wednesday or something, you know, how are how are you coming back yet? Is equally not an appropriate way to go about it.

Julie Marsh: 7:07

No. So I think that all adds to considerations that you need to have in those very, very early stages of somebody's life-changing injury. And then there's a transition for that injured person home, usually, and that might mean they need to be thinking about equipment at home, they'll be worried about what the home environment means for them and how they need to adapt to it. There might be a degree of care. So another factor for employers, not maybe of an injured person, but of a wider family unit, is what are the care requirements going to be? Because their roles might need to change. There might need to be some flexibility and communication there as well. And so there's this whole period initially post-injury where you're getting to come to terms with the injury, you're understanding what it might mean for the future. There's probably going to be a lot of medical appointments, there's going to be a lot of medical information to understand. It's usually quite an extended journey of rehabilitation. So there's the initial rehabilitation period, then there's, well, you've got to go away and do your physio exercises, and you've got to go to all these physio appointments and engage in the rehab. And then there's a okay, you've kind of plateaued now. And it's at that plateau point that I think the injured person then starts to think about what's going to happen about work. How do I transition to work? And that's where I think I can throw it back to you and say, well, at that point, how do you think employers need to be reacting? What do they need to be thinking about? What communication do they need from the injured person?

Andrew Whiteaker: 8:43

Yeah, well, I I what I will always say to people is that medical information is absolutely crucial because you can't look to make any fair decisions where you're making those in the absence of expert opinion or based on your assumptions. I was speaking to a colleague recently who had an experience where an individual had a series of medical conditions which impacted upon their ability to do their job and required some adjustments to be made to support them. And the response they got back from their manager was, well, I know someone who has the same condition and they don't need this. So therefore, we're not going to accommodate it. Which is just one of those head-in-hand moments when you hear that, because you know, every individual is different, every set of circumstances is different. And basing your decisions on what you assume to be true, or you watched a TV program once, or you've got a friend who's had a similar thing, and therefore you just assume that it is comparable or applicable to that individual, is just, you know, a route straight forward, straight towards a bad decision ultimately.

Julie Marsh: 9:49

Yeah, and I think with spinal cord injury patients, we often get a real spectrum. So spinal cord injury doesn't have to mean tetraplegic or paraplegic. A lot of the cases I deal with are actually to do with disc prolapses in the lower back, which cause compression of the nerves, which alter some of the autonomic function in the body. And that means they can be the walking wounded, they can be upright, moving, possibly with a stick, maybe one or two crutches. But actually, when you think about somebody with a spinal cord injury, do you automatically think about somebody in a wheelchair? And and that kind of preconception, you know, needs careful consideration. You need to be careful about your conscious bias and how you perceive the injury, but also be asking the individual, well, you've had a spinal cord injury, but actually, what does that mean for you?

Andrew Whiteaker: 10:40

Yeah, and so this is where we will I mentioned about getting the medical information. There's lots of different forms of medical information that you can recover. So you may have maybe something as simplistic as a note from a GP. And bless them, GPs have a really tricky job to do, and they have a lot of pressures and demands upon them, but they're not necessarily experts either in the particular condition or the injury that the individual has suffered, nor on the nature of that individual's work, the responsibilities, the duties that that role brings with it. And so to be able to advise accurately on what someone could or couldn't do, again, the GP is maybe not the best person to advise on that.

Julie Marsh: 11:18

No, I think they have limited knowledge. I mean, from my perspective, when I'm thinking about a level of GP care, they are frontline medical practitioners. They are there to diagnose if something needs further onward investigation and to manage your, I suppose what you could colloquially say, your everyday kind of aches and pains, medication reviews, things like that. I think any GP would say, you know, if we're talking about a specific nature of injury, I wouldn't want to advise on what that might mean and what that future might look like for that individual.

Andrew Whiteaker: 11:50

Yeah, and and often what my clients will see is they'll receive a report from a consultant or someone who's responsible for the care of that individual. And it can be quite detailed, and it sometimes can, and this is not this is not a snipe at consultants because we're all guilty of it in our own professional circumstances, but sometimes include jargon or acronyms or with an assumed level of knowledge that the casual reader might not have, and therefore it can be sometimes difficult to decipher actually what this means and what the actual advice is.

Julie Marsh: 12:22

Yeah, absolutely. And also it's a snapshot. It's a it's a a very short appointment in a morning full of appointments. And the other thing I think is appreciating what aspect of the condition that consultant or specialist is looking at post-emergency spinal surgery, a neurosurgeon is going to be thinking, well, I've I've done a pretty good job here. This person's not paralysed, they're functioning at a reasonable level, and they will at that point essentially wash their hands of that individual, referring them on. But that referral on might be to a urologist, a bowel specialist, there might be a pain specialist involved, there might be therapists involved. So you will only ever get from a consultant letter a very narrow snapshot of a condition. And obviously, within the NHS, there could then be significant delays in waiting to see those further specialists to then get information on the whole gambit of the injury.

Andrew Whiteaker: 13:20

Which is why, you know, we will often say that the best kind of advice that you can receive is from an occupational health advisor. So, in most cases, your contracts of employment with individuals will entitle you as an employer to obtain a medical report or get a second opinion or something like that in respect of an individual where they are off sick. Many people will have retained occupational health advisors if they are a large organization. For others, it's a particular resource that you have to buy in. But the benefit of having that support from an occupational health advisor is they are the expert in this area. They are able to marry up both a review of the medical records and the details around the individual's condition, because they're medical practitioners themselves, they they understand it and can decode it. But in addition, they will also have the expertise as to how those sorts of issues can potentially be accommodated in a workplace. So that sort of advice is generally much more valuable to an employer than something you'd get from a GPU or a consultant, in my experience.

Julie Marsh: 14:23

Yeah, I think from the injured person perspective, being asked to attend an assessment by an occupational health specialist might actually be quite intimidating. So I think when I talk to clients about that as an exercise, I try and remind them that actually it can be useful because actually it can result in information that can go back to the GP, it can result in wider referrals than perhaps the consultant has first initially done. I think there is a danger that it gives a little bit too much insight into what the future might hold, and those might not be frank conversations that have been had with that individual to date. So I think that needs careful consideration and management. But there can be positives, and also I think it's a very important way of opening the channels of communication with an employer.

Andrew Whiteaker: 15:11

Yeah, and I will often say to my clients, again, from an employer perspective, there can be a perception, if you're talking about any process, whether it's a performance management process or a sickness absence process, there can be a perception in the mind of the individual that they just want me out. They are managing me out of the business. This is what they're trying to achieve here. And let's be honest, sometimes that's the case. Let's be honest about that. That can certainly be the case. But if you're trying to manage someone's sickness absence and you do encounter some sort of reluctance from the employee to engage in these processes, the message is look, we are your employer. We have an obligation to look after you, to see ways in which we can potentially return you to the workplace, either in your substantive role with no adjustments made to it, if you're going to make a sufficient recovery, or if there's going to be limits to your recovery, understand what adjustments we can make to enable you to either do your current role or a different role within the business. But we can only make those decisions with the benefits of medical advice. So what we're seeking to do here is to obtain that advice so we can make good and fair decisions for you. If you are unwilling to cooperate in this process, that makes it really difficult for us to make those changes and to provide you with the support that you need because we don't know what support you need. So it's it's it's trying to explain to the individual that this isn't an excuse or a mechanism or a process being utilized to try and remove them from their job. It's actually we want to help you and this helps us to help you.

Julie Marsh: 16:46

Yeah, it's actually a common issue that we talk about with clients when we're talking about medico-legal assessments through a claim process, because actually quite often they feel like experts are being instructed to trip them up, to find issues with the evidence or to give evidence the fact that actually the impact isn't quite as severe as it's being perceived to be or presented to be. And I think with those clients, I'm saying, you know, talk about good days and bad days, talk about what a good day looks like and what you're capable of doing on a good day, but also talk about the impact of doing your usual day-to-day on you. Fatigue is a massive issue for somebody who's experienced a serious injury. Pain is often another massive factor. And although outwardly you might appear to be coping, that might be because you're on a cocktail of pain medication. And your employer needs to know about that. They need to know about the impacts and the side effects of that medication and how it impacts you. But also that on good days you can perform relatively normally, you know, in comparison to where you were before. But I think one of the things that scares my clients when they're thinking about getting back to work is what can I ask for? What what what is that employer obliged to do? What reasonable adjustments can be made? And if we get to a point when all those reasonable adjustments have been made and this is still just too much of a struggle, what are my options? So reasonable adjustments is I think a key topic for people to try and understand.

Andrew Whiteaker: 18:19

Well, that seems like a really good place to take a quick pause, and when we come back, we'll talk about reasonable adjustments in a bit more depth. Okay, so welcome back, and we're going to talk about reasonable adjustments. And this is often a really challenging subject for both employers and employees to successfully navigate. And I think it's worth just pausing for one moment to think about why this obligation to make reasonable adjustments exists, because I think that's crucial to making sure that we're making good decisions. If you think about it, the the Equality Act and specifically the rules around reasonable adjustments exist because there is a large proportion of the UK population who would find it difficult to undertake either their given roles or any role, potentially in the workplace, because of a particular medical condition that they suffer from, whether that's a physical or medical condition. And unless there were adjustments made to that role to enable them to do that work. So if there were no such statutory obligation upon employers, we would potentially face quite a large proportion of the population unable to positively contribute to the economy and unable to work. So we need to remember that. This is what we're trying to do. We're trying to enable individuals who otherwise would not be able to perform a service to perform a service. So that's what we're trying to achieve here. The battleground around reasonable adjustments, if I can put it that way, or where there's often a bone of contention is what represents what is reasonable. And it's often quite a difficult thing for employers and employees to identify. Because what it is not is making every adjustment that possibly could be made. There's always this element of reasonableness to it. And just to give us a perhaps slightly ridiculous example, I dealt with a case a few years ago where an individual had a back issue that made it difficult to sit in the company car that was provided by the employer because of the particular ergonomics of the car, it put their back in pain. So they couldn't use that car. And so the employer asked them, Well, you know, what alternatives could we look at here? To which the employer replied, Well, a BMW 5 series would work just fine. Now I'm sure that it would. But of course, it's not about just providing what anything that someone asks for. There might be other alternatives that would work. So it's not about meeting every demand, it's about working out what is reasonable for you to do. Cost is often a bad excuse not to not to make a decision. Not just because if you're certainly a larger corporation, there's an expectation that you will have funds available to make these changes, but also because there's a variety of different funds out there and sources of funding that an employer can access to enable them to make some changes. So just saying, well, this is going to cost me some money is invariably a bad excuse for not making the adjustment itself. It has to make a difference, though. It has to make a difference and enable the individual to do their job. So there could be a whole host of different things that one could do, but if the outcome of that is it still doesn't enable the individual to do their job because it doesn't remove the barrier that exists that's preventing the individual from doing the job, then that's not necessarily an adjustment that you need to make.

Julie Marsh: 21:47

And enable them to do their job to the level that they did before, or enable them to do a job.

Andrew Whiteaker: 21:53

Yes, so that's a really good point. And this is again a challenge that a lot of employers find themselves having to judge and juggle with, because what you you may have had someone who was an absolute superstar performer prior to their injury or their illness or whatever that it might have been that's caused them to have a period of time off, and that is then obliging you to make a reasonable adjustment because they fall within the definition of having a disability for the purpose of the Equality Act. But notwithstanding the adjustments that you make for them, they're unable to return to provide the same level of service that they did before. But that does not mean that it would not be reasonable for you to make that adjustment or that it would be fair to terminate their employment simply because they can't make it to the same standard they are at before. Where it's difficult to judge is drawing that line about what is acceptable. Because there may be a whole host of adjustments that you can make for someone. Often it's adjustments to a particular role, sometimes it can be putting someone in a different role, sometimes it can be taking duties and responsibilities away from them. But imagine a scenario perhaps where you make so many adjustments and you take so many duties and responsibilities away that actually an individual can turn up at work every day and they only have at best an hour's worth of work that they can actually do. Or let's say you have someone who is a is a mobile worker, so as a as a job role, they're a field field service engineer of some description, they travel around the country. Because of an injury that they've had, they can no longer travel or not travel long distances, but they could potentially stay at home or maybe travel the 20 minutes to get to the office. You have a limited number of deskbound engineering or desk, yeah, H IT desktop queries that come through on any given day. So you could say, okay, well, we'll just say you do that and we'll assign all the the mobile work to all of the other field service engineers. But if the outcome of that is the individual who's no longer traveling only has to deal with one, two tickets a day, then yes, you've made an adjustment in that you've taken them away from having to travel, great, but actually what's left of their role means that you're paying someone to really not do a job.

Julie Marsh: 24:14

And interestingly, to flip that to the employee's perspective, actually that's pretty devaluing and psychologically damaging if you're in a situation where you're desperately trying to get back and continue to add value, and actually the value that you can add has been completely stripped back.

Andrew Whiteaker: 24:31

Yes, absolutely. So, so yeah, like I said, we could talk for hours about reasonable adjustments and the various cases and the sort of factors that you need to take into consideration, but fundamentally it's about okay, well, is it reasonable for me to make this adjustment and is it going to make a is it gonna make a difference? Is it gonna be an is it gonna enable the individual to do their job? But simply because their job or the the performance of their job may be sub-optimal, so not as good as it might have been in the past, that is not a reason not to make the adjustment, provided they're still able to provide a service to you. And navigating that is always sort of a case by case trying to understand all of the facts on the ground.

Julie Marsh: 25:12

Yeah, and I think that's really informative for employees who are worried about it. I think it's important that they engage as fully as they can in that process. I think open and honest communication is is key as far as that is possible and reasonable. I think you do inevitably reach the point with some people, don't you, that actually there's a kind of mutual understanding that they can't continue within the business, within the role, and actually the business is saying we're just not sure we can do anything more to facilitate that.

Andrew Whiteaker: 25:47

Yeah, and that and that a communication point is is absolutely crucial. Again, I will say to my clients that you need to think about MCA, and that's not because I hope my client will then reply, why MCA? It's not that, but it is because you need to get that medical information to start with. If you don't have the medical information, you can't make a fair decision. Once you've got that medical information, you then need to consult. So you need to talk to your employee to say, well, this is the recommendation, these are the recommendations we've received, this is what we think we can do. What do you think? What's what's your suggestion? Have you got a perspective on this as to what you think we might be able to do? And then you think about your adjustments or your accommodations and you put those in place. That's the process that you need to go through essentially. Without that information, you can't make a fair decision. You shouldn't impose things, you should consult and you should accommodate as best you can.

Julie Marsh: 26:37

That's really useful. In terms of the consulting, do you sometimes find that employees like to bring in third parties to help them around that consultation, aside from your occupational health assessment that's been carried out?

Andrew Whiteaker: 26:53

Yeah, they can do. So sometimes that can be in the form of additional medical information that they might receive from a consultant or again someone under whose care they they are, that they are at that particular time. In terms of actually the engagement in any meetings, there are rules around who can and can't attend. So, as a general rule, your right is to be accompanied by a colleague or a trade union representative. But again, you may face circumstances as an employer where you have a vulnerable individual or you have an individual who it finds it very difficult to properly represent themselves. Maybe they've been absent from work for a period of time, so they don't have anyone that they really feel that they can rely upon at work or someone that they can they can confide in. So there might be circumstances where you might throw it open a little bit wider and say, well, okay, you could bring your husband, your wife, your mum, your dad, someone like that in. But you that's that's a conscious decision that you have to make. You need the employee to ask you about it, and then you need to think about it. Because what you don't necessarily want is I'm going to bring my cousin Jimmy in, who happens to be a solicitor, who then you know gives you because this is not what it's supposed to be. It's not supposed to be a legal forum. We're not supposed to be having it's not a court, we're not having a legal debate here with trying to understand what we can do to help you.

Julie Marsh: 28:07

Yeah, I'm grateful that none of my clients have asked for me to come along to any of those meetings.

Andrew Whiteaker: 28:11

Absolutely.

Julie Marsh: 28:12

Slight professional embarrassment in that situation. Yeah. But I am thinking of those clients that might have suffered a traumatic brain injury and not necessarily have clear insight fully into their capability or have issues around communication. But presumably the medical evidence obtained by the employer in that situation would flag that as an issue and maybe make them think about having to approach that consultation process a little bit differently.

Andrew Whiteaker: 28:39

Yeah, and it's we've been speaking a lot about reasonable adjustments. And of course, reasonable adjustments aren't just about changing, making changes to a job, for example, but it could be about making changes to a process that you're following. So if you do identify that actually the process that we're running is placing this individual at a particular advantage the disadvantage because of their medical condition, we should be thinking about adjustments that we might make to that process to ensure that they're not disadvantaged.

Julie Marsh: 29:03

So that's a really interesting point of consideration, I think, for my clients is how capable do they feel of coping with the process? Do they need to be asking for reasonable adjustments in respect of the process, not just thinking about what do I need to get back to work and do my job?

Andrew Whiteaker: 29:21

Yeah, absolutely. And it's a it's a valid thing to consider. Well, just to finish off about reasonable adjustments, a a challenge that I often have or a complaint that I often receive from employers is when something has gone wrong and an employee pursues a claim and they receive a claim form from the tribunal that then sets out a whole raft of reasonable adjustments that the individual says, Well, you could or should have made these to support me. And the business looks at it and goes, Well, they never asked for that. They didn't suggest that. They didn't, they didn't ask for that. Maybe we could have done that if they'd asked, which is no defense whatsoever, because it's a positive, proactive. Duty to make reasonable adjustments. So if there is something that you could have done that would have made the difference and you didn't do it, you are liable, even if it wasn't discussed at the time. So again, that goes back to that point around communication and consultation. You really need to have a real brainstorm, really kick it around and not just restrict yourselves to maybe suggestions that you might get back in an occupational health advisor's avoid report, but really, you know, you understand the situation, you understand the role, as does the individual. Really drill down deeply into what you potentially can do to support.

Julie Marsh: 30:33

And presumably in an evolving situation where there's an evolving period of recovery and rehabilitation, that needs to be an ongoing process. You don't just make those reasonable adjustments at the outset and then think, yep, fish bash bosh done that. That's great, thanks very much. I've got rid of my duty there. Because I'm thinking in, for example, an employee amputation situation where somebody is utilising prosthetics effectively, there will always be setbacks, but they might then end up with a great piece of prosthetic equipment and microprocessor knee that allows them to step up a level in what their actual capabilities are, and the adjustments then might need to be tweaked and changed.

Andrew Whiteaker: 31:14

Yeah, if someone has a disability for the purposes of the Equality Act, the obligation to make reasonable adjustments and the obligations not to treat them less favourably because of their disability or for reasons arising from that disability persists. So it's not just I've made some changes, great, tap on the back, off we go. If they continue to have a disability, which they will, then you need to continue to think about what adjustments you might be able to make to support them if they're facing any barriers that are preventing them from doing their job. A couple of other things I just wanted to flag off before we bring this to an end, just around signposting and looking for support and other channels or options available to businesses. If we do have an employee who's off work for an extended period of time, we need to think about what internal options we have available for us. So that could be something like an EAP, so an employee assistance program. Many employers have them. There's something to signpost to individuals. They may be getting separate support either from their medical practitioners or they've sought counseling or support from other places. But it may well be the case that they they might not. And the employee assistance program will often provide those sort of first-line contacts and support and guidance and then recommendations as to how the individual can navigate the challenges they face. Private medical as well, that might be something that's available. Clearly, if that is the case, then that might be something that will either speed up care. You were talking about consultants and how long reports might take. Same is obviously true of appointments as well.

Julie Marsh: 32:44

Yeah, absolutely. I think when I first talk to newly injured clients, one of the things they're often seeking is quicker onward referrals to specialist consultants. And so we would always be saying look at your employee assistance program, see what options are available by your employer, and also private health cover, because it can mean that you get to see who you need to see a lot quicker. It can mean that you then end up on different referral pathways. And actually, within the private sphere, it can actually mean better access to better AIDS, equipment, and therapy, with all of which are, of course, of massive benefit in those early rehabilitation periods.

Andrew Whiteaker: 33:28

Yeah, absolutely. Another benefit that might be available is PHI as well, so permanent health insurance. So we've been talking, and our focus today has been talking about how we get someone back to work and how we support them back to work, but it might be the case that they're not able to. The nature of their illness or their condition or their injury means that they are not going to be able to return to the workplace. But you as an employer might have a health insurance policy in place which provides ongoing salary for that individual for one year, five years, ten years, potentially up until retirement age, depending upon the terms of the insurance policy that you have in place. So employers should certainly be looking to establish whether they do have that. And also, if they do, they certainly shouldn't be looking to dismiss individuals because that would deprive them of the ability to recover against that policy.

Julie Marsh: 34:14

Yeah, and some individuals will obviously hold that kind of insurance privately as well. So we'd always explore that with clients as well.

Andrew Whiteaker: 34:20

Yeah. And then the final thing I'd say about signposting is also think about, well, think about you, Julie, frankly. Yeah. And your team. Because although, you know, my team, generally speaking, we're supporting businesses in managing individuals in these circumstances. If you have an injury who suffered, if you have an individual rather, who suffered a personal injury, or if they have experienced issues with the medical care that they've received, then signposting them to professionals who can support them through that process again is a really valuable thing you can do for them.

Julie Marsh: 34:50

Yeah, I think it's a really valuable tool in an employer's kind of toolbox, really. I think when you've got individuals who you think would be off for a set period of time, they go off for a medical procedure and then you know, houses come crashing down around people, things go wrong. Sometimes it takes people a little bit of time to reflect on that treatment, especially if there are significantly extended periods of ill health. Takes people a little bit of time to come to terms with what's happened and to reflect and then to start asking questions. Those aren't obviously questions an employer is going to be able to address, but they are questions that somebody like myself can help navigate, can help support you in asking for answers and assessing whether the care that you've received was of a reasonable standard and actually whether the outcome has been caused by a mistake. And that does then open the door to a medical negligence claim, a civil claim. And if your ability to work is then impacted by your injury caused by negligence, then that can form part of your claim. And so a lot of my clients are desperate to return to work and do sometimes manage to do so to some degree, but quite often can't return to this level of performance they were at or the same job role. And that does mean a loss of income. And that has a significant impact when you're talking about another 30 years of working life ahead of you.

Andrew Whiteaker: 36:22

Yeah, absolutely. And we, you know, our focus this morning has been talking about the you know, those so proactive steps that we can take to try and help someone get back to work and put them in a position where they can provide a service, whether it's the same or a slightly varied or altered job that they were doing previously. But it's sometimes the case that the individual is not able to do so, and it might be the in those circumstances that you would look to terminate their employment. But if you've been able to signpost them, if they have experienced the sort of, as you say, the the issues with the medical care that they've received, or there might be a personal injury angle to it, if it's a result of an accident caused by somebody else, then that might provide them with a means of of recovering compensation and recovering financial some financial security for themselves that might otherwise be lost if their employment is simply terminated.

Julie Marsh: 37:07

Absolutely. And from the personal injury angle, if you've been involved in a significant road traffic accident, then they work within a slightly different rehabilitation setting and actually can often access that rehabilitation and support quite early on if the liability issues are quite straightforward, which is a luxury we don't have within the medical negligence field. But that can alleviate the degree of pressure that an individual can feel. And it can also help then facilitate conversations around employment.

Andrew Whiteaker: 37:37

Well, thanks again, Julie. That's been a really interesting discussion.

Julie Marsh: 37:40

Thanks for having me and thanks for all the information.

Andrew Whiteaker: 37:42

So thank you once again for listening to the Employment Law Podcast. If you're interested in checking out any more episodes in this series, then you can go to the Boys Tenner website, or alternatively, you can follow or subscribe wherever you listen to your podcasts.