Managing Sick Absence
It should be remembered that information relating to sickness is sensitive data under the Data Protection Act and has additional confidentiality rights. The number of day’s sick absence is not sensitive data and can, and should, be released to the line manager so that they can manage the situation. The medical reason for the absence is sensitive data and it should only be disclosed to a person authorised to process personal data and on a need to know basis. Generally, one person should be responsible for holding the sensitive data which should be kept locked or password protected.
Managing Short Term Absences
The intermittent odd days off are particularly disruptive as they are unexpected and put extra strain on other employees. The key to controlling these absences is to have good records. Most employees do not realise just how much time they have had off and being able to give dates means that the conversation moves away from defensive arguments about the scale of the problem to the standards going forward. You should pick up on these types of absences sooner rather than later as they can easily drift on and, without reinforcing the boundaries of acceptable attendance, they will tend to creep. The employee should have a return to work interview after every absence, even a day.
The return to work interview
Research has shown that a return to work interview is very effective in controlling short term absences. If nothing is said, the employee assumes, consciously or unconsciously, that this is acceptable behaviour; being put in the spotlight brings their attention to the fact that the absence has been noted by management. This is notwithstanding that it is good practice and showing a concern for employees has good motivational benefits where the employee is genuine.
A return to work interview should be conducted after all absences, even after a single day’s absence. They need not be formal, and a brief discussion in these circumstances will normally suffice as the purpose is to welcome the employee back and check:
- How they feel. Are they well enough to be working; people not being paid may return too early and if they have returned whilst unwell they may pass it on to other employees or make themselves ill for longer.
- If not already known, find out why they were away, but beware confidentiality if they don’t want to tell their line manager.
- Discuss any rehabilitation conditions on the fit note if they have one.
- If the employee has had a number of absences from work it may be wise to find out if there are any underlying medical problems causing this. Sometimes symptoms do not seem related to a lay person but a medical practitioner may recognise a medical problem which may even be a disability and will require a different approach. If the same reason is being given or the absences appear linked, then a medical report should be obtained.
- For repeated short term absences where there is no underlying medical problem then the conversation is about their lack of satisfactory attendance. (Letters)
Obtaining Medical Opinion
At some stage in the management of sickness absence, managers may need further information in order to make informed decisions about ability to work, disability, reasonable adjustments etc. Such information should only be accessed with the informed and explicit consent of the employee. The employee must be made aware of what he or she is consenting to, who will see the information and how it will be used. No GP or consultant will reveal such information without a signed consent form under the Access to Medical Reports Act 1988. (Letters)
Where the individual is to see the company doctor, there is no need in law to have the employee consent under Access to Medical Reports Act 1988, but the advice of the College of General Practitioners is that they should obtain it. The employee should be made aware of what the information will be used for and who will have access to it. There is rarely a need for a line manager to know the detailed clinical details of an illness. Problems can however arise where there is an examination at which the company doctor becomes aware of something important but finds that consent is then withheld for passing on that information. In such cases the doctor’s knowledge is deemed to be the knowledge of the organisation. This is a totally untenable position, because the line manager is unaware of the issue, which in some cases may amount in law to a disability.
The most sensible way to proceed is for the internal doctor to seek consent prior to any medical and to explain how much of the information will be passed on to the line manager. If an individual gives informed consent at that stage the information can be passed to the appropriate line manager to be used for the stated purpose only. Consent cannot be later removed (the codes make this clear). If an individual refuses consent for a medical he or she should be told of the consequences, ie that any decision will be taken only on the basis of attendance or performance of the job, which may not be to their advantage. It would be difficult in such cases for an individual to claim disability discrimination when the employer had no knowledge of disability, nor could have had any.
Alternatively, the Government Fit for Work service can be used. This is a voluntary scheme which consists of two aspects, an advice line and website for employers, employees and GPs to help individuals stay in or return to work, and an assessment of employees by an occupational health professional. Under the assessment element of the scheme, once the employee has reached or is likely to reach four weeks of sickness absence, they can, with their agreement, be referred by their GP for an assessment with an occupational health professional. Issues preventing the employee from going back to work will be looked at.
Following an assessment, employees will receive a return-to-work plan with recommendations to help them get back to their job more quickly and information on how to access appropriate interventions. For more information see http://fitforwork.org/about/
Employees who have a disability can make a claim in an Employment Tribunal whilst still employed or if they believe this is to be the reason for non-recruitment or dismissal.
What is a Disability?
It is defined as a physical or mental impairment which has a substantial, long term effect on their ability to carry out day to day activities. It is a complex area and there is a significant amount of case law and it is recommended that advice should be sought. (Consultancy)
There are six different forms of disability discrimination:
- direct disability discrimination
- indirect disability discrimination
- discrimination arising from disability
- a failure to make reasonable adjustments.
It would be discriminatory to dismiss someone because sick absence related their disability without following a proper procedure. An employer is required to make suitable adjustments for an employee with a disability and these can range from a change to normal hours or to start and finish times, the provision of specialist adaptations or equipment. In order to avoid a discrimination claim it may also be necessary to adjust the number of day’s sick absence which trigger absence management procedures. It is good practice and sensible to separate absences due to a disability from other absences and the increase the disability related absences before triggering formal action.
It is vital that a medical report is obtained before dismissing an employee with a disability for sick absence.
Long Term Absence
A long term absence is not specified in law but generally a single absence of 4 weeks or more would be considered long term.
The key difference between short and long term absences is that medical opinion must be sought before dismissing any employee who is absent with a long term medical condition if an unfair dismissal is to be avoided. This situation is one where the employee can’t undertake their contractual duties and the capability procedure is the correct one to follow. This differs from discipline where the employee is able to meet his or her contractual obligations but deliberately chooses not to do so.
It is particularly important when someone has been on long-term sick leave that they are not permitted to start work again without the manager checking their fitness and ensuring that the doctor or specialist has agreed that they are fit to return. Sometimes employees who are running out of sick pay can be tempted to try and return earlier than they should, but to permit a return to work without medical clearance would be a clear breach of the employer’s duty of care.
The return to work interview following long term absence
Employees returning from long term sick absence should have a return to work interview as above. In cases of long term absences it is helpful to inform the employee of any significant events or changes in working methods which they may have missed. The meeting will generally consider the GP’s fit note and whether there needs to be a phased return of if any changes are suggested to facilitate its employee’s return. It should be checked that the medical condition does not bar an employee from working on health and safety grounds. In such cases the manager should check that the employee has been cleared by an occupational health representative.
Employees who are absent for 1-7 days should be asked to complete a self-certification form giving their reasons for their absence. Where employees are absent from work for more than seven days, a doctor’s medical certificate (fit note) should be provided. The certificate should clearly state the reason for absence and it should then be filed in the employee’s personal file. It is important to obtain and keep these certificates because they justify the employer’s payment of SSP. The records should be kept for three years. The SSP rules also allow the production of certificates from homeopathic practitioners.
Reasons for sick absence are sensitive data under the Data Protection Act and should be kept confidential on a need to know basis and ideally administered by one person only.
If informal discussions have not resulted in an improvement in attendance then consideration should be given to formal action. (Handbook)
Continuing Short Term absences
The company procedures should specify trigger points for instigating formal action. This is usually a mixture of number of days’ absence and the number of spells of absence in a particular period. However these should be treated with discretion as a long-standing employee who has had no sickness absence for years and now needs some time off for day treatment at hospital for a minor problem is not in the same category as a new employee who has had a day off a week since he or she joined.
The meeting should discuss the fact that, no matter how genuine the employee’s absence(s), their level of attendance is causing concern and they need to improve. The employee should be asked for an explanation for the absences and any mitigation should be considered. If the employee says there is an underlying problem, or you consider this might be the case, then a medical report should be obtained if the employee consents. They should be advised that if their attendance levels do not improve then their continued employment may be at risk. (Letters)
Continuing Long Term absence
The law recognises that an employer needs to deal with long term absence and that an employee may be well enough to attend a meeting, even if they are not well enough to work. If the employee is still off sick and you need to address their absence, you should invite them to a meeting to discuss their absence and when they might feel able to return. (Letters)
If the employee is prepared to attend the meeting the manager should explore what the employee thinks their prognosis may be and when they think they might return to work. It may be that they are waiting for an operation which should resolve the problem. This may be viewed differently to a chronic condition with no real improvement likely or a timeframe estimate not being possible. There is a significant risk of a claim for disability discrimination in dismissing employees who have been absent on long term sick absence and following a correct procedure is essential. (Handbook) (Letters).
- Explain that the meeting is about their lack of attendance and to enable you to understand their condition better and how you might help them return to work sooner. This may be a discussion about adjustments to hours, reduced workload or removing certain tasks temporarily. If you have obtained a doctor’s report during their absence you should always invite them in to discuss the contents.
- If you have not yet obtained a doctor’s report and the employee can offer no foreseeable end to the sick leave, then ask them to give their consent to a medical report from their GP or consultant. (Letters)
- If you have had a number of discussions then the employee should understand that if his or her attendance levels do not improve, dismissal will be one of the options for the company.
Failure to attend meetings
There can also be serious problems in following a fair procedure if the employee either is unable or unwilling to attend the meetings. Sometimes the employee simply does not turn up. These are particularly difficult when the employee is absent with a stress related illness as the employer must take care to not add to the employee’s stress and become liable for a negligence claim. For more details see handling stress below.
In these cases you will need to carry out the process by correspondence or via a representative. Employees often think if they don’t come to the meeting then the problem will go away. It is important to be persistent and invite them more than once in order to be fair to the employee and to comply with the ACAS Code of practice. This prevarication is particularly common (and understandable) where the employee is absent for a stress related illness.
The letters should explain the consequences of not attending and what other options are available to the employee, such as sending a representative or responding in writing, and next steps if they do not attend meetings or give permission for a doctor’s report. (Letters)
Refusal to give consent for a medical report
One of the most difficult problems is the need for a doctor’s report on the employee’s condition, prognosis and likely return to work. The time to get a report is quite lengthy as the employee must first give their consent and delays can occur in obtaining this. The GP then has up to 21 days to produce the report but if they do not, you as the employer have no sanction except to keep chasing so it is best to start the process early. Also, a GP’s duty is to his patient and frequently reports from them are singularly unhelpful. Asking very specific questions is often more helpful than a general one. (Letters) However, if the relevant questions have been asked, and the answers are not forthcoming, an employer can take action on the basis of what they have.
The right to be accompanied at formal meetings
The employee has a right to be accompanied at any formal meeting by a work place colleague or a suitably qualified trade union representative (they do not need to be a recognised union of the company). The purpose of any meeting is always to try and resolve the problem and the employee should not be accused of malingering. If there is good evidence that this is the case then the matter should be dealt with under the disciplinary rules. (Managing discipline guide and handbook).
When employees are signed off work due to stress or stress related illness such as depression this makes managing their sick absence particularly difficult. It is often used as a means of avoidance by employees who think if they have stress you cannot deal with their absence. This is incorrect but great care has to be taken to avoid claims for disability discrimination or harassment and for claims of negligence which can be very high and are made through the courts not through employment tribunals. The employer also has to be careful to be reasonable in their behaviour so as not to lose an unfair dismissal claim. The key steps to take in stress related cases are:
- Ensure you have sought consent for and obtained a medical report. If consent is refused then you should write to the employee explaining that it is in their best interests to permit this.
- If the employee refuses to attend a meeting then offer the following:
- An alternative date
- An alternative venue off work premises such as a room in a hotel or conference centre. Do not hold it at their home as this invades their privacy and you cannot keep control.
- Offer them the option of having a representative present their case for them at the meeting.
- Consider adjusting the rules on who the representative can be eg by allowing a family member to accompany them.
- Offer for them to answer your questions in writing
- Allow for more time in the procedure; do not be in a rush to dismiss. Offer more than one opportunity to attend a meeting or make representations.
- Make sure the medical report is reasonably current. If it is older than a month consider obtaining a new one before dismissing.
If the employee’s absence becomes untenable then they should be invited to a final meeting to discuss their absence and their continued employment as they are at risk of this being terminated.
If they again, do not propose to attend the meeting then they should be given a decision in writing with a right of appeal against the decision. (Letters)
An employer is not obliged to pay an employee who is absent without permission from management as they are technically in breach of contract. The company should specify the rules applicable when an employee is off work due to sickness; for example, how and when they should let their manager know that they are ill and the rules concerning certification. (Managing sick absence).
There should also be clear rules for applying for leave of absence. A breach of the Equality Act may result where the employee is absent due to alcoholism.
Employees may be absent without permission for reasons other than sickness. They may have travelled on holiday to another country to visit family and they are not contactable or if they are, they say they cannot return as they are ill or cannot get a flight. These are difficult situations to manage.
It is dangerous to make assumptions too early or the employer may fall foul of the implied contract term of trust and confidence and if the employee is dismissed they could lose a claim for unfair dismissal if the proper enquiries have not been made as to the reason for the absence.
If an employee says they were ill on holiday then they can be asked for medical evidence to support this. They are also able to reclaim the holiday days when they were sick if they can substantiate the illness. Whatever reason is given, the employer should investigate before taking action which might be under the disciplinary rules if the employer feels it was deliberate.