It is inevitable that employees fall ill from time to time, but sickness absence is one of the trickiest things for an employer to deal with. A reduced workforce may struggle to cope with their workload. This can lead to resentment and increased stress. And this can itself lead to further sickness absence from other members of the team. Sometimes, employees 'pull a sickie' and this can be frustrating for an employer. Occasionally, the employer should look to its own practices to understand why it is experiencing high levels of sickness absence, which can be caused by poor management systems. Conversely, a supportive and fair employer can generate enormous goodwill and loyalty in its workforce.
Here are ten tips to assist employers in dealing effectively with sickness absence:
Explain the rules
Putting in place the ground rules at the very beginning of the employment relationship gives both the employer and the employee a degree of certainty as to what they may expect of each other when an employee falls ill, before an issue arises. For instance, the employer should consider including a provision in the contract which requires the employee to consent to undergo medical examinations by a doctor appointed by the employer andto provide that doctor with their medical records. This will make it easier to explain to the employee why they are being asked to divulge sensitive information about themselves at a difficult time.
If an employer offers contractual sick pay, it would be sensible to ensure that the employee only has a right to receive that enhanced sick pay if they follow the employer's policies and procedures (which include undergoing medical examinations). Such policies and procedures should set out a regime of person-to-person notification – speaking to a manager, rather than leaving a message with a friend or on a voicemail, can be very effective in ensuring that sickness absence is genuine. It is also useful to state that contractual sick pay will be withheld if the employee is subject to disciplinary proceedings, subject to performance management or under notice of termination.
Keeping in Contact
Appropriate contact should be maintained with an employee who is off sick – not only because the employer has a duty to do so, but because it is good for employee morale. Of course, HR should also be sensitive to the fact that too much contact could have adetrimental effect on the employee's potential return to work. What is appropriate will depend on the circumstances of the case and the nature of the employee's absence.
Expectations of the Employer
Although a period of sickness absence does not release employees from all of the duties they owe to an employer (for example, the duty of good faith and fidelity), it is important to remember that an employer does not have complete control over the activities of an employee on sick leave, even if the employee is in receipt of enhanced sick pay. For example, if an employee has a broken arm that prevents them from working, it would not necessarily prevent them from going on holiday. In this scenario, such time would not count towards the employee's annual holiday entitlement.
Employers should keep accurate records, including records of sickness absence, correspondence, notes of meetings and telephone calls and any agreed action points with an employee. Not only can this highlight recurrent themes and help to identify possible problems, it can also be used as evidence in justifying any future dismissal.
An employer should continually consult with an employee in relation to their absence or continued absences. This is a good way to identify potential wider issues that the employee may have and will help both parties to put measures in place beforeproblems occur. It can also motivate the employee to strive to return to work sooner. The consultation process is likely to include the involvement of an occupational health professional.
The consultation should include discussion about (i) when an employee might be fit to return to work; (ii) whether an employee has a 'disability' pursuant to the Equality Act 2010 and, if so, whether reasonable adjustments should be made (including to the sickness absence policy itself); and (iii) whether permanent health insurance is available to an employee. An employer should only contemplate dismissal once all other possibilities have been properly considered and the employee has been fully consulted.
Return to Work Interviews
ACAS recommends that return to work interviews should take place, no matter how short the period of absence. This is good practice and ensures that all employees are treated in the same way. It can also act as deterrent for malingerers. An employer should use the return to work interviews to decide whether any adjustments should be made to the employees' role or working practices. They are also a useful way of flushing out any wider issues.
Permanent Health Insurance
If PHI is available to employees (providing insurance cover in the event of a long term sickness absence), it is important to remember that the terms of the insurance policy are likely to provide that the PHI insurers need to be notified as soon as it seems likely that an employee will claim under the policy. Employers may wish to make it clear in the contract of employment that they have the contractual right to terminate employment, even if this results in the employee ceasing to be entitled to the PHI cover. The contract should also make clear that the employee's rights are subject to the rules of the scheme, in case an argument arises as to the employer's obligations to provide the benefits itself if for any reason the employee is not covered by the scheme.
A recent Court of Appeal decision (Griffiths v The Secretary of State for Work and Pensions) has held that employers should consider making reasonable adjustments to their sickness absence procedures if they put disabled people at a disadvantage. For instance, if an employer has a policy of always instituting a procedure and issuing warnings when sickness absence crosses a particular threshold, it should consider whether that threshold should be increased for a disabled person, or if the procedure should be modified in some other way.
Whilst the ACAS Code of Practice on disciplinary and grievance procedures does not state that it specifically applies to ill-health dismissals, employers should consider the guidance in Appendix 4 (Dealing with Absence) and the ACAS advisory booklet, 'Managing attendance and employee turnover' which sets out the best practice that should be followed. These can be found at www.acas.org.uk.
Reason for the Dismissal
Sickness absence management should be about managing sickness and attempting to identify ways for the employee to return to work as soon as possible, not for considering dismissal from the outset. However, in certain instances, this will not be possible and dismissal becomes a reality. Generally, the 'fair' reason for the purposes of unfair dismissal legislation will be capability. However, if the dismissal is for a high number of short intermittent absences, it may be more appropriate to categorise the dismissal as 'some other substantial reason'. While an employer should always assume that an illness is genuine, if there is evidence that the employee was untruthful in not attending work, a dismissal on the grounds of misconduct may be more appropriate.