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Managing Sickness Absence

Wednesday 20th November 2019
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Managing sickness absence

Introduction

So far we’ve kept it straightforward with our blogs but this is a tricky topic. Employees who are off work sick may be so for a variety of reasons. It could be that they are pulling a fast one and taking off every Monday following their heavy Sunday nights out. Or they could be suffering from a serious illness/disability and require support. Or anything in between. So where do we start with a blog on how to manage sickness absence? Let’s break it down:

Short-term absences

These are often not given as much attention, seen as a minor problem. They can however be a huge drain on companies. There is a need to maintain productivity but also employers must be mindful that employees do genuinely need to take time off for ill-health.

So when does short-term sickness absence become problematic? To work that out the best thing you can do is keep proper records of absences. Make sure you ask employees to self-certificate for all absences (this can make those who are not genuine feel a little awkward) and obtain a certificate from the GP for absences of more than seven days. Also consider the use of return to work interviews, which will help you understand properly the reason for the absence.

If someone is taking regular time off from work then there could be an underlying issue. You will be able to see from the self-certification form if the same problem is recurring. Where appropriate seek medical advice and/or refer to occupational health.

Most importantly have a policy in place so that (a) employees know what is expected of them and (b) managers have clear guidelines as to when a sickness absence management meeting should be called. Most employers will want to have trigger points to start an absence procedure, and this will usually be a set number of day’s absence in a given period. Beware though: relying on an automated trigger point is problematic for all sorts of reasons (including under the Equality Act 2010 and the Data Protection Act 2018), so do make sure there is an actual human being assessing the data on its merits.

A sickness absence procedure will usually be in three stages. In the first stage an employee may be given a warning about his or her absence level, and a plan can be agreed to improve attendance. At the end of each stage there will be the right of appeal. Ultimately it may be possible to dismiss the employee for reasons of capability if attendance does not improve. It is also essential to consider if the employee has a disability (see below) as this places additional obligations on the employer.

If you believe that an employee is just pulling a fast one, and you have some evidence of this, implementing a disciplinary procedure may be a better option (we can discuss this with you if required).

Long-term absences

A long-term absence from work will need to be handled sensitively. There may be a serious illness as a root cause, and it can also be that the employee has alleged that work is compounding whatever the issue may be. Once again, having in place a policy for managing the absence will do you favours. Your key steps are likely to be:

  • Keeping in regular contact with the employee, obtaining updates on their condition and the treatment they are receiving;
  • Keeping the employee updated about their sick pay entitlement, including when Statutory Sick Pay is going to run out; and
  • Consideration of whether you need to obtain medical evidence, either from the employee’s GP/Consultant or from an independent medical expert engaged by you. You will need to obtain the appropriate consents from the employee.

When you are obtaining a medical report make sure you ask the right questions. These will include asking for information on the employee’s condition, their likely prognosis (including a return to work date), whether a phased return is appropriate, whether they are likely to be disabled for the purposes of the Equality Act 2010 – and if so whether any reasonable adjustments are appropriate.

Unlike with short-term absence, a three-stage procedure is unlikely to be appropriate. The key question is whether the employer has waited long enough for the employee to render satisfactory service. However, if the employee is disabled you will need to make reasonable adjustments – not only to the work, but possibly also to the procedure itself. These adjustments could include giving more time and more leeway.

Disability

The definition of disability under the Equality Act 2010 is a topic in and of itself (don’t worry, we will cover it). The main thing to be aware of at this point is that an employee may be disabled even if you don’t consider them to be and even if they show no signs of any impairment. The definition requires that they have a long-term physical or mental impairment that has a substantial impact on their ability to carry out day-today activities. This is fairly broad. If you suspect an employee is disabled, obtain a medical report and take advice. Ignoring the issue won’t mean you can plead ignorance – you can be found by a tribunal to have constructive knowledge of a disability even if not actual knowledge.

If an employee is disabled you need to make sure you are not discriminating against them. Discrimination can be a matter of treating someone less favourably because they are disabled, but it can also be far more complex. You are obliged, for example, to make reasonable adjustments to their job to try and assist them in returning to work or managing their work. What is reasonable for a large multi-national company will be far different to what is reasonable for an employer who employs just three people.

If you have done all that you are reasonably required to do, and if you have followed a proper procedure, then you will usually be able to dismiss an employee if they really are unable to return to work. It is just a matter of doing it properly – which means not discriminating and not dismissing unfairly.

As you can see it is not a short topic and we could go on (and on). Having policies and procedures in place to help you is key. We can assist with this, and we can advise you on how to handle any current cases of sickness absence you may be grappling with. Sometimes these cases are like games of chess, so having a chess grand master on your side is vital.

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