Managing Sickness Absence

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1 Managing Sickness Absence Sickness absence is a real issue for most employers. Not only does it have a financial cost but it can also disrupt the workforce and affect morale, especially when sickness absence is poorly managed. Employers are regularly faced with the difficult conundrum of not wanting to appear to pressurise a sick employee to return to the workplace too soon but this can result in longer periods of (and recurring) sickness absence. On the other hand, employers are sometimes suspicious about the reasons for absence and try to start the return to work process. The sick employee can be left feeling pressurised and guilty whilst genuinely unable to return to work. In the meantime, employees in the workplace carrying out the additional work to cover for sick employees can feel unappreciated and resentful towards employees who appear to be unnecessarily absent. Author: Clare Thomas, Employment Law Specialist Solicitor at Grindeys The Health and Work Assessment and Advisory Service ( the Health and Work Service ) is due to be implemented nationwide in The Health and Work Service will go some way to assist with dealing with long-term sickness absence. It will offer a referral service (usually via the employee s GP) to an independent occupational health assessment once an employee has been absent for 4 weeks or is likely to be absent for 4 weeks. The occupational health assessor will prepare a return to work plan, setting out any adjustments that are required to facilitate the return. The Service will also provide a general work and health advisory service for employers, employees and GPs. Sickness absence can be short term, long term or recurring, and whilst each type of absence has similar issues, they also generate different problems. Employers regularly need advice on how to handle all types of sickness absence. How to handle sickness absence The key to managing all sickness absences is to adopt a fair and consistent approach. This is achieved by using a robust sickness absence management policy. A policy should include detail on how sickness absences should be notified and evidenced. It should also set out the process by which sickness absence is handled, including the need for return to work interviews and medical examinations. Employers should set out clear parameters of what is expected from an employee absent from work due to sickness, including the frequency and method of contact between the absent employee and the employer. Employers should schedule regular reviews to discuss progress, problems and return to work plans.

2 Notification of sickness absence is usually to a line manager. The appropriate point of contact should receive appropriate training for the role. They should understand the need to deal sympathetically with situations, whilst also asking appropriate questions to obtain sufficient information to allow the absence to be appropriately managed. Important detail such as the reason for absence and the likely return date should be requested along with information regarding medical treatment being received (where appropriate). It s also important that managers maintain a joined-up approach to avoid contradictory messages. In theory, employers can choose what evidence they require from employees and at what stage of the absence. However for the purposes of processing Statutory Sick Pay (SSP), an employer cannot insist on a doctor s certificate for at least the first seven days. As such it is usual for a statutory fit note ( a Fit Note ) to be requested from 8 days absence, followed by more detailed medical examinations for long term or potentially recurring absences. The Health and Work Service will introduce a voluntary system for referring employees for an occupational health assessment where the period of sickness lasts or is expected to last for 4 weeks or more. However employers are free to refer employees for occupational health assessment (at their own cost) much earlier than this where it is appropriate and necessary to do so. It is important that employers maintain up-to-date medical information and the onus is on the employer to request updates. Furthermore, once an employee has been referred to occupational health under the Health and Work Service and a return to work plan has been provided to the employer, the employee will not need to be covered by a Fit Note during the period that the return to work plan covers. It is important that employers maintain a good paper trail of an employee s sickness absence. The documents will be vital evidence if an employee is subsequently dismissed on grounds of incapacity or in any disability discrimination claims. It will be important that the employer can demonstrate that it acted reasonably in the event of a dismissal or it may need to objectively justify actions taken in respect of a disabled employee. The document trail should include file notes of telephone conversations and conversations should be followed up with letters summarising the position, in addition to minutes of meetings and any documents setting out the reasons/background of any decisions reached. These records should be stored confidentially and in accordance with data protection obligations. Conduct whilst on sick leave Employers are often very interested in the activities of sick employees, especially where there is a suspicion that a condition is being exaggerated or does not exist at all. Whilst it can be difficult not to

3 do, employers should not jump to conclusions regarding an employee s activities whilst on sick leave. There is no legal requirement for a sick employee to stay at home and often sport or holidays can be considered to be helpful in returning to good health and therefore work. Where there are concerns about someone s conduct during sick leave, they should be properly investigated by way of medical examination. If evidence indicates that the employee is not genuinely sick or is exaggerating then this should be dealt with as a case of misconduct. Return to work interviews Return to work interviews are usually the best way to sensitively investigate reasons for absence. Employers can choose to hold return to work interviews after every period of absence (long or short) or only in the case of longer absences. Best practice recommends a return to work meeting after every absence. Even if the meeting is informal and brief, there is evidence to suggest that they do help to reduce short-term absence. The very need to sit through a return to work meeting after each absence can be a disincentive to some employees to take sick days. They also help to highlight to employees that their absence is being monitored and further action may follow if attendance does not improve. A return to work interview provides an opportunity for managers to discuss issues with employees and get a better understanding of any underlying issues triggering the absence (short or long term). It is important that return to work interviews are undertaken consistently to avoid allegations that particular employees have been singled out or treated less favourably, potentially giving rise to discrimination allegations. Equally the procedure should have some flexibility to allow managers to use their discretion where appropriate. Adjustments in the work place It may be necessary to make adjustments for an employee returning to work after a period of sickness absence. Adjustments can include (but are not limited to) a phased return to work, varied start and finish times, alteration or reallocation of duties or purchasing additional equipment. Under the new Health and Work Service, after an employee has been referred to his/her GP, the GP will submit a return to work plan. This could contain adjustments for the employer to put into place to assist the employee to return to work. For shorter term absences or where the employee has opted out of the Health and Work Service, a GP s Statement of Fitness for Work ( fit note ) has the option of declaring an employee as may be fit to work subject to making certain adjustments.

4 Adjustments help to discharge liability under disability discrimination legislation and would also assist in establishing that the employer had acted reasonably if ultimately the employer ended up dismissing the employee on grounds of capability. Whilst an employer may be able to make the recommended adjustments, it should still conduct its own risk assessment to ensure no employee is at risk as a result of any changes/adaptations. For example, if a returning employee is put onto shorter working hours as an adjustment does this leave another employee alone in the role and potentially at risk? Adjustments can also invalidate an employer s compulsory liability insurance so this should be thoroughly checked. It is usually advisable for employers to agree to adjustments operating for an initial trial period, so that both parties can subsequently review their effectiveness and amend them if necessary. What if formal action is required? Sickness absences can be managed without formal action. Where sickness absence reaches an unacceptable level, either because it is long term or because it recurs naturally, it may be necessary to manage the absence via a formal procedure. Employers can identify trigger points which will start the formal process. The formal process should include formal meetings with the employee to discuss the reasons for the absence. The meetings should also explore return to work (in the case of long term absence) and when attendance might improve (for short term/recurring absences). The invitation, along with reasons for the meetings, should be set out in writing in advance to the employee. The employer should obtain medical evidence and ensure that meetings are held with the employee to discuss the medical evidence, what it means for the employee and how the employer can accommodate any recommended adjustments. The employee should be offered the right to be accompanied to any formal meetings and it may be necessary to hold the meeting outside of the office, either at the employee s house or at a neutral venue. This could apply where, for example, the employee has difficulties attending the office. Formal warnings may need to be issued where necessary and appropriate (with a right of appeal) and the employee must be warned throughout the process that dismissal may result if attendance does not improve. Employers usually consider dismissal on grounds of capability where the employee is unlikely to be able to return to work at all or the return to work is uncertain. Dismissing in response to short term/recurring absences is possible but usually harder as inevitably the employee improves their attendance once matters become formal. The key to these situations is to monitor the sickness absence to ensure old problems do not resurface once the threat of formal action has passed.

5 If the employer wants to move to dismiss an employee on grounds of capability, it is vital that it can show that a fair procedure has been followed. At the very least this will involve two formal meetings and a review of up-to-date medical evidence. The employer must be able to show that the decision to dismiss was reasonable under the circumstances. It will therefore need to be able to communicate the impact the sickness absence has had and continues to have on the business, along with showing that, where necessary, reasonable adjustments have been made. Where an employee is dismissed on grounds of capability, a right of appeal should be offered. Handling sickness absences is notoriously difficult. Each case very much turns on its own facts and the risks are potentially high when disability discrimination can occur. The key to successfully managing sickness absence is consistency and fairness. It is also vital that sickness absence issues are not left to drift for long without management intervention and formal action where appropriate. The new Health and Work Service will provide useful assistance for employers who do not currently have a process for referring sick employees to occupational health, but it will still be important for employers to manage all sickness absence sensitively yet consistently and robustly. If you would like further advice on managing sickness absence or any other employment law matter, please contact a member of Grindeys Employment Team. This article is not intended to constitute legal advice and specialist advice should be sought in individual cases.