K3 Insights

When the Employee Remains Capable of Employment (but has an ongoing illness or injury)

When it comes to managing illness and injury in the workplace, medical incapacity sits right at the intersection of legal risk, humanity, and operational reality. It’s one of those issues where good people can still find themselves in trouble, not because they’ve acted in bad faith, but because the situation is inherently complex and deeply personal.

Employers often ask: “When does ongoing illness become medical incapacity?” or “How much absence is too much?” Unfortunately, there’s no simple formula. It depends on the pattern, the cause, the prognosis, and, crucially, how the employer has responded along the way.

Here are K3 HR’s Top 3 insights when an employee is still able to remain in employment but managing an ongoing condition.

1. Distinguish Between Random Illness and an Ongoing Condition

Not all absences are created equal. Ad hoc, random absences due to short-term illness (like the winter flu) sit very differently from absences caused by an ongoing or underlying condition.
Repeated absences might look the same on paper, but the underlying causes, and the appropriate management approach, can differ significantly.

• Ad hoc absences may warrant a conversation about attendance expectations, fitness for work, and the operational impact.
• Ongoing conditions may trigger obligations under the Human Rights Act and Health and Safety at Work Act. The focus then shifts to reasonable accommodation- how to support the employee’s continued contribution without creating unreasonable risk or burden.

Before taking action, employers should have sufficient medical information (with consent) to understand the likely pattern and impact of the condition.

Genuineness matters. Sick leave can legitimately be used for physical or mental illness or injury — including stress or burnout. Taking a “mental health day” or time out to recover (even if that involves something restorative like golf) can still be genuine.
However, using sick leave dishonestly, for example, after another leave request has been declined, or to travel overseas for personal reasons, is not genuine and can amount to misconduct. The distinction is honesty, not the activity.

2. Clarify What “Too Much” Looks Like - and Keep Processes Clear

There’s no statutory definition of “too much sick leave.” The key is clarity- set clear expectations in employment agreements and policies about attendance, communication, and what happens if absence becomes long-term.

Equally important is distinguishing between the absence itself and how it is reported.
An employee may have a legitimate reason for being unwell, but if they fail to follow the required procedure or timing to notify of absence, that’s a separate issue, and can be treated as misconduct.

Consistency is crucial. Apply attendance and reporting expectations evenly across the business and remember that entitlement to sick leave and capacity to perform work are distinct issues.

3. Handle the Human Side with Care

Even when the employee can stay in employment, how you handle the process will influence engagement, trust, and reputation.

Practical Tips:

• Keep communication open, respectful, and frequent - silence creates anxiety.
• Check in early about possible adjustments.
• Involve the employee in identifying solutions.
  Train leaders in how to have supportive attendance conversations.
• Keep notes, but don’t overcomplicate the documentation.
• Balance empathy with operational boundaries.

In short: managing ongoing illness is about balancing empathy with accountability. The goal is not just to retain staff, but to retain trust.