Handling short-term absence
- Procedures and training
- Employee contact
- Return to work
- Sickness or disciplinary procedure?
- Medical reports and health issues
- Typical procedure
- This guide sets out below the key issues and key aspects of procedure when dealing with intermittent, short-term absences.
- It is a common misconception that if an employee is genuinely off sick you cannot dismiss them. Indeed, if an employee is absent from work, but not genuinely off sick then this is misconduct, probably gross misconduct.
- You are entitled to regulate your workforce. Tribunals acknowledge the disruption caused to a business by excessive absence. Ill health is a potentially fair reason for dismissal under s. 98 of the Employment Rights Act 1996: it comes under the category of capability. It is possible to dismiss someone who has been of with genuine sickness, even if it is stress-related, so long you tread carefully.
- Have a non-contractual sickness in place setting out the reporting obligations with which employees must comply when on sickness absence and the procedure you will follow if you have concerns as to the level and/or nature of sickness absence.
- Ensure that you have good reporting procedures in place and make sure that employees self-certify for short absences (e.g. if they are off for less than a week) or provide a medical certificate for any longer absence. This helps to ensure that you are complying with statutory sick pay (SSP) requirements and should put you on notice of any potential problems.
- Ensure that your managers and line managers have received training in how to carry out your procedure on sickness absence and return-to-work meetings.
- Some employers have HR systems which set ‘triggers’ to alert them once an employee’s sickness absence hits a certain level within a specified timeframe. If you decide to adopt this approach, bear in mind that any decisions flowing from that trigger should be compliant with both good practice from an employment law perspective and also the new data protection rules which are coming in in May 2018. This means in essence that any decisions about how sickness absences are dealt with and/or any sanctions flowing from them are not made automatically by your computer/HR system but rather by the manager who can exercise their discretion in considering how best to deal with the situation and can take into account any mitigating factors or any reasonable adjustments which are required.
- Ensure that you keep in touch with an employee on sick leave. This will show you are thinking about them and may encourage them to return to work. This also helps you keep abreast of the situation and plan for likely continued absence.
- You should first agree the form of contact by which you keep in touch with the employee; this could be through email, telephone or other means.
- Once the employee returns to work hold a return-to-work meeting as soon as possible to discuss the cause of the illness/leave and whether there is anything the company can do to prevent such illness absence recurring and/or support them.
- This is particularly important where the sickness absence is stated as being work-related stress. You should also use this meeting to decide whether it is appropriate for you to take formal action against the employee.
SICKNESS OR DISCIPLINARY PROCEDURE?
- The structure for dealing with excessive periods of short-term sickness is similar to that of a disciplinary process and the ACAS Code on Practice on Disciplinary and Grievance Procedures should be followed, together with your own company policy.
- Even though many employers do use the disciplinary policy to regulate sickness, it is not to be recommended. It is better to follow a reasonable and fair capability process. Tribunals often stress the need for sympathy, particularly if the illness arose from an injury at work.
MEDICAL REPORTS AND HEALTH ISSUES
- If the employee has been off for several weeks, you should consider what steps you can take to eliminate the causes of the alleged illness. For example, you might need to consider a change to the employee’s work patterns. You may also need to carry out a risk assessment and consider what (if any) steps can be taken to alleviate the situation and/or support the employee’s return to work.
- Consider obtaining a medical report. You can do this by contacting the employee’s GP or using a company-nominated doctor/occupational health professional or, if the employee is being treated by a specialist consultant, that consultant. Formal medical advice will help you identify whether the employee’s condition is a ‘disability’ for legal purposes (which in turn triggers a legal duty to make reasonable adjustments), as well as long-term prognosis, likelihood of returning to work and phased return options etc.
- If you decide to obtain a medical report, you must bear in mind your obligations under the Access to Medical Reports Act 1998. You will need the employee’s consent in advance to a medical report and you must inform the employee of their rights under the Act. If the employee refuses to give consent, it would be prudent to explain in writing to the employee that you can only make decisions based on the information you have before you.
- Once you have received the medical report you should decide, based on the information before you, whether continuing with the formal capability process is appropriate, reasonable adjustments (if any) and whether there are other actions you and the employee could take to resolve the matter.
- If the capability process is continued you should consider the process in light of the employee’s condition. This might require extra flexibility in the process, e.g. the time frame or venue of the meeting.
- Even if a condition appears to be a minor one, it is worth obtaining a medical report at an early stage. All too often employers progress to the stage of final written caution or even a contemplated dismissal before obtaining a report. Only then do they realise that what appears to be a trivial illness is in fact a symptom of something more serious. By now much management time and resource has been wasted on a process that could well be flawed.
Best practice suggests a sickness procedure that is separate from the disciplinary procedure. For example, words such as ‘cautions’ and ‘meetings’ should be used rather than ‘warnings’ and ‘hearings’. Below is what a typical procedure might involve:
- If the employee has disclosed details of a medical condition, discuss it with them to find out what its effect is on them and how the business can support them etc. Consider obtaining medical evidence.
- Following sickness absence, have an informal back-to-work interview with the line manager. Is it malingering/moonlighting or a genuine medical absence? Remind them of the importance of complying with the company’s reporting obligations and direct them to the sickness policy if appropriate.
- If genuine, consider whether an examination by Occupational Health is needed.
- Ask Occupational Health any relevant questions you have, e.g. the nature and long-term prognosis of the condition, its effect on the individual’s ability to perform their work, returning to work and whether it is a disability for legal purposes. If an illness has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities, he or she is likely to be ‘disabled’ under the law. If so, there will be a duty on you to consider ‘reasonable adjustments’ to the job, its duties and the workplace that might alleviate the condition. You are not expected to create a new job, but it might be reasonable to consider or offering them a transfer to an alternative role which is available internally.
- Hold a meeting (giving reasonable notice in writing beforehand) to discuss the matter and the Occupational Health report with the employee and allow them to put forward any relevant mitigating information. The employee has the right to be accompanied by a union representative or colleague. If appropriate, issue a sanction or a caution, explaining how long this will be placed on their personnel file and what will happen if their sickness absence continues to be a concern, e.g. that it will result in further caution/sanctions up to and including dismissal. Remember that the decision to dismiss an employee is a managerial one and not a medical one. You should make your own assessment of the risk to an employee’s health of returning to work. Give a right of appeal.
- Hold further meetings to discuss the employee’s sickness absences if these continue to be excessive and/or frequent, issuing cautions as you consider appropriate and reasonable in the circumstances. On each occasion the employee should be invited formally to the meeting, be given details of the company’s concerns and told of their right to bring a companion. Your decision and minutes of the meetings should be issued to the employee in writing, and the individual told of their right to appeal.