Sickness Absence Management

Today’s video article by Gareth Walls, Partner at A&L Goodbody, focuses on one of the most significant issues that every employer faces: sickness absence and how to manage it. Gareth provides useful tips on how to deal with issues such as work-related stress absence, accessing medical reports and how to best deal with occupational health instruction within the confines of legislation.

View Gareth’s video here or read the transcription below:

Today we're going to look at one of the most significant issues that every employer faces, and that's sickness absence and how to manage it. Now, the first thing I would say and confess is that this is a huge issue. It's been described by many people as one of the most significant issues that faces the UK economy, and in fact, it was quoted as being a bigger issue in the 21st century than global terrorism because of its financial impact in relation to the economy.

That's one aspect and one way to look at it, but the reality is, it is also the single biggest issue that faces HR departments and HR advisors, and indeed, legal advisors throughout. How do we deal with work-related absence? There's no way that I'm going to cover all of that in a five to ten-minute slot now. What I do want to do is give you an overview about the process that we would think about running, in relation to dealing with this issue, and the fundamental issue, I would say before we get into that, is that this process must never be run in isolation.

Work-related stress

If we're going to look at work-related stress, for example, and we can do that and we can look at that, and it's very, very common. It must never be done in isolation. Work-related stress can have so many different aspects to it. But fundamentally, it can impact on so many aspects within the employment relationship: policies, procedures which deal with bullying, harassment, for example. Discrimination is frequently brought into work-related stress, as well, the employer's obligation to consider: 'Well, is there an underlying cause?'

So, it's a huge issue, and we're not going to cover it all, but what we are going to look at is work-related stress, what an employer should do. And then, once we get into the employer investigation, we're going to look at steps to be taken to the instruction of Occupational Health, for example.

Whenever an employee cites work-related stress, it frequently comes within a fit note for four to six weeks. Questions which you want to consider are:

• Is it, in fact, genuine?
• What kind of workplace investigation do we need to do?
• What kind of consequent adjustment will we need to make?
• Is there an underlying cause?
• Is there bullying? Harassment? What might that be?
• Is the work-related stress in response to an internal investigation, in and of itself?
• Is there a disciplinary matter, or a grievance matter which has triggered a work-related stress citation by the employee because they're running scared from a process they don't want to go through?
• Can an investigation (the employer's investigation) be itself harassing in nature?

There are all sorts of questions that we need to address.

But again, we always start with: 'Well, what does the contract say?' The employer must always start with the contract of employment and make sure that the contractual process is actually fit for purpose. It may have been right when it was drafted ten or fifteen years ago. Has it moved with the times? Does it comply with the current statutory guidelines? That is your starting point. Long before any correspondence is issued externally, you need to make sure your policy's fit for purpose.

Let's assume that it is. Then you apply the contractual process, which starts in a sickness absence with, generally, self-certification for a number of days, followed by a return to workplace interview, etc.

You must enforce the bare minimum in relation to your process. Do the bare minimum in relation to self-certification and a return to work. If you don't, it undermines every other subsequent process we might seek to run.

Statutory sick pay exists. Make sure you know the protocols which attach to that. Make sure the notification, certification policies are all followed to the letter, and make sure when we follow those, that they're followed objectively and applied reasonably to all our workplace.

There may well be situations where we apply different process for someone at the director/ board level versus someone on the shop floor. Okay, that happens in every workplace, we understand that. But make sure that, at least within cohorts, you can apply your same policies objectively and consistently. And where you apply a slightly different approach between the cohorts, depending on seniority for example, be able to justify that, and be able to show that even within cohorts, it's objectively done.

Take a look at the fit note. A fit note or a sick note, depending on how it's termed internally, frequently doesn't actually provide a diagnosis. For example, what is work-related stress? It's not an illness. It is not a medically recognised illness. It's more of an affliction and it can have many, many different contributing factors to it, and also many ways to deal with it.

It can be for four to six weeks. It can be shorter. It can be much longer. And certainly, what the employer does not want to get to is a situation whereby a four to six-week sick line is met by another four to six-week sick line. Consequently, before we know it, the employee has been out of the employment for a very long period of time, and there has been no active management of that by the employer.

So, I would say that what we need to be is proactive. We need to seek to engage with the employee at every stage, and we have to do that in an empathetic way, of course, but we need to try and understand 'Well, what is the issue?' because fundamentally, work-related stress is a bit like the chicken and egg analogy. What came first? And furthermore, how on earth can an employer be expected to understand what the stressors are, and remove those stressors to allow the employee to return to work without conducting an investigation? So, it's difficult.

Access to medical reports

Effectively, there are two pathways. The first pathway for the employer investigation in relation to the illness, is the patient's own GP. By approaching the GP and asking for a more detailed explanation of the fit note and for some of the underlying cause. I'm not so sure that's terribly helpful because a GP is split between his obligation to provide an illustration of what he's originally diagnosed, but on top of that, he is the patient's advocate. Consequently, you may not be getting sufficient information or appropriate information, to allow HR to actively understand and deal with the issue.

To that extent, then, I would always recommend the second pathway, which is the employer's retained or consultant-led approach. In that regard, what I'm saying is we instruct Occupational Health, on behalf of the employer, to provide a report which deals with all the issues and allows us to make a valued and informed decision about the employee's illness, the absence, the likelihood of a short, medium, or long-term return. Ultimately, that opens up so many other aspects of information for us, which is important for us. Is there going to be a disability within the meaning of the Act, etc.? All of those issues can be dealt with within the report.

But, before we do that, it is extremely important to know our rights and obligations in relation to obtaining such a report. It is unusually bound up in statute. It's the Access to Personal Files and Medical Reports (Northern Ireland) Order 1991. It has been amended and touched upon ever so slightly over the last few years, but the fundamental basis remains exactly the same. It's a piece of legislation everybody in HR, and everybody who advises HR in these matters, should be aware of.

So it allows employers to apply for a medical report, but it's only after certain hurdles have been crossed. One, the employee will have to be notified in writing of the intention to obtain a report. The employee's rights, in relation to that report, need to be properly and clearly explained. And also the employee must have given appropriate consents. There are a number of various consents. One would be, of course, to obtain a report from the employee's treating GP, but I'm not necessarily recommending that. Instead, I'm recommending that the report comes via an employer-appointed external consultant.

The actual consent form is not a pro forma ‘one size fits all’. The consents and the approach to that need to be tailored to the individual circumstances, and that is a critical point and often overlooked.

So, let's look at the consents themselves. First of all, the employee can consent, actually, to a report being prepared. But unusually, they can also withhold consent to the GP delivering access to notes and records. In which case, the validity of the report is called into question, right at outset.

They can also indicate that they don't want the report ever to be released. They can also see the report long before it is released to the employer itself. Moreover, they can ask the GP or the consultant to amend any part of the report, or redact parts of that report which the employee considers to be inaccurate, before release to the employer. And indeed, they can also send a written statement to the author of the report, giving views on its content if they're in disagreement, especially if the author, whether it's the GP or the consultant, declines to amend or redact the first draft report.

Ultimately, if the employee is unsatisfied with the consents and the report as presented, whether redacted or amended, or otherwise, they can also withhold consent to the report ultimately being supplied to the employer, even if we have paid for it, and even if we have given time off etc. We need to understand that it is a valid pathway but the employee can withhold consent.

However, if they did, that's actually a double-edged sword because, we will have set up a process, thus far, which will confirm to the employee that: 'A report is being prepared, you have a number of consents, but ultimately, this report is being generated so that we can understand the likelihood of your return to work, and your future employment with us.' So, ultimately, it's in the employee's best interests to make sure that a report, albeit it's fair to them, comes through to the employer.

Now I said before that there's no pro forma for that consent form. While the statutory process is clear, it's also extremely important that the employer must explain the consents succinctly, and they must provide the employee consent form in advance to the employee. It is simply not sufficient to contract that service out to Occupational Health or an HR support company because they won't necessarily appreciate the nuances of the consents, they won't appreciate the nuances of your industry, and they will not necessarily get the consents point right. If they don't get that right, it is no defence for us, as the employer, or you as the HR advisor, so the culpability lies with you, and the entirety of the process is undermined.

Occupational health

Because it's such a significant process, and because it is so potentially valuable to the employer, you have to make sure that the instruction to Occupational Health works for you. So the instruction and the request for medical consents always can expose the employer to risk, and can impact the employee's morale, whatever the case. As such, instructing the expert appropriately with empathy, accurately, and within the confines of the legislation is critical.

So, we should ensure that any instruction should include a detailed explanation of the employee's role, their responsibilities, and these are communicated to the expert with an understanding of what the day-to-day role of the individual might be because a shop floor worker in one industry is going to be completely different from that in another, even if they're making, ultimately, the same kind of product. Everything depends on the context of the workplace, the reporting lines, the structures, the relationships, and the individual's history. And those need to be communicated to Occupational Health so that they get a full and frank understanding of this situation of which they're going to be asked to provide a professional opinion on.

That's partly in relation to the instruction off in the background, but equally, it's important to detail exactly what you want out of the report. You should set out pertinent, focused questions as to a diagnosis, and you should also seek commentary from the expert, the medical expert, on short, medium, long-term prognosis, in relation to the individual.

In common with that, and if relevant, you should seek advice on whether or not the individual may be disabled within the meaning of the act, being the Disability Discrimination Act 1995. And, whether or not you ask that question, whether or not the answer, or whatever the answer, it doesn't really matter. You should also be asking in every request if there is a diagnosis, and if there's a prognosis which indicates a short, medium, or long term impact, but ultimately with a view to return to work.

Then, we should also ask what reasonable adjustments to the workplace may be made which are worthwhile. What those might be, what they might look like, and for how long they should be supported, i.e., to lead into the phased return to work.

What I would say, and this might seem quite extreme, but if you pose those questions to the Occupational Health consultant in advance of the meeting and they push back on any of your questions, or the remit of the report, or the scope of the questions asked, then ultimately, if they're not going to address those queries in principle, then you should find one who can.

There are lots of Occupational Health consultants out there and you need to find, if you're going to go through this process, who will actually serve the business. That does not mean that they are necessarily employer-friendly, or that they're going to give you an outcome that you necessarily want, or maybe the board is demanding that you provide as an HR professional. But it is a very simplistic point to make. They have got to be able to provide you with substantive, cogent arguments and diagnoses, prognoses, etc. If they can't do that, find one who will because otherwise you're wasting your time and your money.

So, apart from anything else, if we're going to talk about a phased return, it's important strategically, for us, as the employer, to ask for that and to understand that. Ask about prescribed medication, for example, and likely impact on any working pattern.

For example, if some of the prescribed medication has side effects, which might impact on the employee, being a forklift truck driver or working certain periods during the day, then we need to know about that because we have an obligation, not just in relation to the employee, but also in relation to work colleagues, members of the general public with whom that employee will interact, on a day-to-day basis.

There are many questions to consider. Consider the timetable. Consider the cost. Consider the Occupational Health consultant's awareness of their duties to the court and the tribunal, as a professional witness because ultimately, the whole paper trail, the instruction, etc., can be discoverable in subsequent litigation. Obviously, we hope never to get there. We want to run a process which is reasonable, which is justifiable on an objective basis, which is equitable, and one which is run with empathy. But, ultimately, if the employee doesn't like the ultimate outcome, bearing in mind there's no obligation on us to create a role for someone, just to seek to try and find reasonable adjustments. If they have the protection of the DDA 1995, then frequently these situations can lead to termination and subsequent litigation. Consequently, everything we write, everything we communicate is discoverable, from the first instruction, to the seeking of the consents and the explanation of the consents.

Ultimately, fundamentally, many of these reports will lead to the ending of the employment relationship. We all know the term 'managed exit', and frequently that occurs in a situation whereby the individual simply cannot return to work in the short, medium, or long term, and that creates fundamental difficulties for the employer. That, in and of itself, can be extremely aggressive.

Frustration of contract

There is a process. Even the LRA accepts that where the situation is very difficult, there can be a point in time whenever the employment contract can end without fault, as a consequence simply of the inability to continue to perform the contract. That is a concept known as 'frustration of contract'. It's very rarely applied. It's very difficult to apply, but it can't even be considered as a runner, unless and until we have gone through the Occupational Health policy's procedures.

It may be that we need to get a number of medical reports, and I appreciate that that takes time and can be frustrating, but nevertheless, if the employer ultimately is seeking to terminate an employment relationship on grounds of ill health, whether it's work-related stress or any other, then we need to have a very strong paper trail in place. That is, a paper trail with a statutory basis, and it's a paper trail that ultimately must dovetail with our internal contractual policies and procedures, and it is one that frequently can lead to litigation.

Compromise agreements

Now, where I'll finish is in relation to compromise agreements. Where and if we run our various processes, and even if the employee accepts, on a pragmatic basis, that it is impossible for them to return to their job which they had previously done. And, moreover, there are no other jobs which the employer may operate, if for example, we're a small employer, we just simply can't facilitate an alternative role. Then it may well be, once the reports are read and understood and discussed, that the employee accepts that employment is to end. Even in that situation, we can use a compromise agreement, or a settlement agreement if we're in GB.

Most people would say the compromise agreements cannot deal with injury to feelings, cannot deal with personal injury, cannot deal with pensions, for example. Actually, they can because the carve out for personal injury is only for latent liability. It's for personal injury matters which no one is aware of at the point in time of sending the compromise agreement. It's designed to cover off things like asbestosis-related mesothelioma or vibration-white-finger-type claims. i.e., injuries which occurred during a period of the employment but are only diagnosed many years afterwards.

If we are terminating the employment relationship, or if we're allowing it to frustrate, and end that way, there's no reason why we can't use a compromise agreement, deal head on with the illness or the injury which has led to the termination. Once that's properly compensated and the individual receives independent legal advice in that, then the compromise agreement is a really, really helpful tool in dealing with this situation and ensuring there's no future liability, and all parties can leave with dignity and their head held high.