Sickness and absence management

A well known minefield which we can guide you through

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Sickness and absence management

If you do not proceed with caution when managing employee absences due to ill health, you could face a claim and there can be unlimited compensation payable.

Managing sickness absence

Employee sick days cost businesses millions of pounds a year in sick pay and benefits, temporary staff and lost revenue.  It is one of the most serious obstacles to productivity, profitability and competitiveness and the smaller the company, the greater the effect.

Maintaining records of employee’ absences and effective sickness absence policies and procedures in place will help you deal with absences consistently and effectively as well as putting employees on notice as to the standards of attendance and reporting that you expect from them.

Sickness and absence policy

Providing employees with particulars of any terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay is a legal requirement.

This information can either be contained in the employment agreement or referred to in the employment agreement and kept in another employment document such as the staff handbook.  It should be transparent and easily accessible.

We often get asked by clients to draft policies and procedures to deal with sickness absence and also review and update them when necessary.

Key considerations in assessing absences

Nature of absence

Distinguishing between short term absences on a regular basis and absence from work for a long period of time due to ill health or disability.

Identifying whether the level or frequency of absence is a cause for concern: for example, a stress at work problem, or malingering.

Statutory and contractual entitlements

Entitlement to statutory and/or contractual sick pay, including deciding whether qualifying conditions have been met. A sickness policy should set out relevant qualifying conditions.

Reason for absence

The reason for absence, and whether it is genuine. This will entail ascertaining the true medical position and may involve seeking a medical report. Also considering whether the absence coincides with any periods of holiday.

Is work the cause of the absence?

Whether the incapacity has been caused by workplace factors such as stress, bullying or an accident at work.

Disability related absences

Whether the absence is related to a disability and whether any reasonable adjustments are needed.

Next steps

Whether disciplinary steps or dismissal is appropriate and, if so, ensuring a fair process is followed.

Considering whether the employee may be eligible for permanent health insurance or ill-health retirement.

Short term and/or repeated absences from work

We are regularly asked whether persistent short term absences can legitimately result in dismissal. The answer is yes if you follow the correct procedure.  We assist with the following:

  • Reviewing employment contracts, policies & procedures including disciplinary, ensuring that you are complying with them.
  • Seeking the employee’s co-operation for access to his or her medical records, in a repeated absence situation. Alternatively, liaising with his or her GP and possibly also obtaining the employee’s co-operation for an Occupational Health assessment by a consultant which you retain.
  • Reviewing the nature, length and effect of the absences, and the employee’s past performance.
  • Considering whether dismissal is justified as being fair and reasonable in all the circumstances? Dismissal should be the last resort and not the first option.
  • Determining whether the employee qualifies to claim unfair dismissal in terms of length of continuous service.

The position may be somewhat different where there are reasonable grounds to suspect that absences are being claimed due to sickness but in reality the employee is not ill. In these situations, the position may escalate faster and depending on the circumstances, you may consider such activity to be gross misconduct.

Long term absence

Greater care is required with long term sickness. There are additional procedures to deal with:

  • Maintaining regular contact without harassing the employee.
  • If the employee’s condition improves considering if they can return to work.
  • If they can return, considering offering them suitable alternative employment, if appropriate.
  • Requesting information from the employee’s doctor. The request should be through the employee who may or may not co-operate. Take into account what the medical practitioner says.
  • Determining whether the employee has a disability, which is subject to Equality legislation, and which reasonable adjustments should be made.
  • Devising contingency plans.

Determining if an employee is disabled for employment law purposes

An individual who has been absent from work by reason of illness may be protected by disability discrimination law.

The role of an employer in working out if an employee is disabled for employment law purposes requires special consideration and protection to avoid disability discrimination claims, especially in light of all the expense and management time a disability discrimination act claim brings.

Disability discrimination law

A person is disabled for discrimination law purposes if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In some cases it may be obvious whether the employee is disabled, but in other cases it may be necessary or prudent to obtain a medical report in order to make this assessment or to consider the extent of any reasonable adjustments required by the employer.

Difficulties in reaching a conclusion

One of the difficulties often faced by an employer in handling disability sickness is that the Equality Act does not include an exhaustive list of which illnesses are covered. Another difficulty is that what may be a reasonable adjustment for one employer is not for another as the decision is very fact specific.

Obtaining medical records

In situations where it is difficult to reach a conclusion, we assist employers in trying to obtain an employee’s medical records. The ability for employers to access employee’s medical records is governed by the Access to Medical Reports Act.

The employee must be notified that the employer wishes to obtain their medical records and that they intend to apply to their doctor for this purpose. Contained within the notification must be full details of the employee’s right under the Access to Medical Reports Act.

Only once the employee has given their written consent can an employer approach the doctor, with this written consent, to request access to the requisite report or records.

Having the necessary policies and procedures in place will prove vital when defending disability discrimination claims.

Borderline cases

We have extensive knowledge in the area of discrimination law and often act as a sounding board for employers who are unsure of whether an employee is deemed disabled for discrimination law purposes.

The courts have also now stepped in and provided some helpful guidance, although the position will never be entirely clear and free from employment law doubt.

Taking a holistic view

Managing sickness remains one of the more difficult aspects of employment law for employers and an area where employers can trip up if not well advised.

It has previously been established that in coming to a decision concerning an employee’s disability status, it is not sufficient for an employer to simply ‘rubber stamp’ the decision of an occupational health assessment. Instead it is necessary for an employer to look at all the evidence available and come to a conclusion on whether the employee meets the statutory criteria of a disability set out in the Equality Act.

Possible claims an employee may bring

The key employment related claims that an employee may bring are:

  • Unfair dismissal;
  • Disability discrimination; and
  • Pregnancy related claims.

Unfair dismissal

Qualifying employees have the right not to be unfairly dismissed. An employer can defend a claim of unfair dismissal successfully if they can establish that the reason for the dismissal is one of five potentially fair reasons, and the tribunal concludes that the dismissal for that reason was fair in all the circumstances.

Where the employee has suffered from ill-health an employer is likely to dismiss on the grounds of capability or “some other substantial reason”.

Compensation for unfair dismissal is capped.  For further information visit our page on unfair dismissal.

Disability discrimination

An individual who has been absent from work by reason of illness may be protected by disability discrimination law under the Equality Act 2010.

There is no minimum qualifying period for discrimination claims and there is no upper limit on compensation, which will usually include an award for injury to feelings and may anticipate a prolonged period out of the workplace. Awards in some cases may therefore reach into the hundreds of thousands.

Pregnancy related claims

Where an employee’s sickness results from pregnancy or maternity, she has special protection under the Equality Act 2010 and the Maternity and Parental Leave Regulations 1999.

An employee who is dismissed or subjected to detriment because of pregnancy-related illness could bring a claim for pregnancy-related discrimination as well as for unfair dismissal or detriment. This would include having the pregnancy-related illness taken into account for the purposes of any absence management procedures.

Business disruption

Claims by employee can cause significant disruption and damage to a business, in terms of wasted management time, legal costs and potential compensation, adverse publicity and low employee morale.

Terminating an employee’s employment should be a last resort.  We can advise you at the outset before a situation reaches that point.  You may still terminate the employment but with the correct advice and following the correct procedure you will minimise the risk of a claim being bought against you or succeeding.

If you are facing a claim from an employee, our experienced litigation team can assess the merits of the case and advise you on your next steps.  We have a strong track record for succeeding in defending claims against employers and wherever possible reaching a settlement.

Sickness and absence management track record

Some of our recent instructions include:

  • Defending a claim for unfair dismissal made by an employee who was dismissed due to a long term sickness absence lasting for a number of years on the basis of frustration of the employment contract.
  • Advising a client on reasonable adjustments that should be made in light of an employee returning to work after a serious car accident leaving the employee disabled but capable of continuing with their role within the business.
  • Updating clients’ sickness absence policies and procedures.

We work with many smaller businesses that face the issue of either long term absence or persistent shorter absences every day.  Often we are guiding the directors on what to do and say and acting as a sounding board in the decision making process.

We also work with larger businesses that have a HR team. We work with HR, guiding them through the technicalities they may not feel able to handle without our specialist employment law knowledge on employee sickness management.