How to reduce long-term sickness and manage triggers

Posted in : Seamus Says - Employment Law Discussion on 1 December 2017
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q. Now, Seamus, please discuss sickness absence and how to reduce levels, what initiatives could be introduced if managing long-term sickness absence and we’ve been advised that non-improvement may trigger a disciplinary. At what stage do you trigger it? There seems to be a conflation of different procedures here.

Seamus: Yeah. I mean the bottom line is for sickness, sickness is going to happen in every organisation, and really it is about trying to manage that. I think the first point is that what steps can you take in order to avoid sickness arising, with the acceptance that it will arise that there could be other ways to monitor staff and pre-empt absence. So if you have disgruntled employees or an employee that's coming to tell you that they're suffering from stress due to workload or that they're aggrieved, that's your first sign, well here there's a potential this employee could go out on sick and it could be a lengthy period of sickness.

So it's getting in there and trying to deal with the issue and trying to mediate and resolve the issues for employees before they would go off on sick leave. Where you do have circumstances that they do go off on sick leave, I think it's about keeping in touch with the employee and adhering to your welfare obligations in respect to the employee. Fine line with that. You don't want to be getting into a position where an employee is making allegations that they're being harassed by the employer. So you have to be careful in terms of maybe at times being a ‘friend from a distance’ at times and that you are meeting with the employee and finding out what their prognosis is, how they're feeling, what their likely return date is.

There will be the third step on that where there would be a longer period of sickness absence and really you're then into looking at medical evidence through Occupational Health or through getting an update from the general practitioner. And again, that will be about explaining to the employee and getting them on board in relation to the reasons why you are doing that and everything else.

In terms of trying to deter sick leave and sometimes within organisations, you just have a high-level sickness. I know that there are various things that they've come across the clients can do in relation to. They maybe set up on attendance bonus, where they will say if you have 100% no sickness or no absence, you'll get a bonus at the end of the year of X or a percentage of your salary or whatever it is. And that maybe will be tapered down for inevitable sickness that will happen, and that can act to deter.

Or the other side is that sometimes you will see this where there will a disciplinary policy and certainly within public sector you would see it quite a bit, where there will be triggers at certain times if the employee has had so much absence or for periods of absence or if they're divided up over the year, then it triggers disciplinary proceedings. That's a potential way of dealing with it. But you need to be careful.

Scott: But that's not for long term. That's for . . .

Seamus: No.

Scott: …intermittent absences. For long-term absence, it's not really a disciplinary issue. It's capability.

Seamus: It's a capability issue, and it should be dealt with in that manner. But when you're looking at triggers, a lot of Monday, Friday sicknesses happen or something along those lines and they're repetitive and you've talked to them informally and it's not working, then you're sort of into the formal side of it, but you need to be careful obviously. Any employee that's off on long-term sick leave, there's potential disability discrimination issues, and it's not always appropriate just to discipline, because someone has been off ill. So, it's about reading the circumstances and applying them appropriately, and being fair about it.

ScottOkay. Still on this issue here, but maybe moving into a more specific area,

Q. Do employees have the right to refuse to answer questions in a company medical, or can they refuse to participate in drug tests if not provided for in the contract?

Seamus: Well, again the question there is slightly difficult in the sense that whether it's in the contract or not, whether someone agrees when they sign their contract of employment that they will attend for medicals or that they're required to or they'll take drug tests, they can't be forced to. And you need to be careful that, specifically when it comes to drug tests that someone isn't feeling that they're putting their arm on the table and have a needle put into it, because you're into all sorts of issues of criminal activity, maybe in terms of retaining somebody against their will or something along those lines.

Scott: This is not a protection issue. It's because . . .

Seamus: Well, absolutely.

Scott: That comes through too.

Seamus: It's keeping it simple as well to the aspect of searches in terms of people's property or maybe body searches and things like that that would happen as well. You can't force them into doing it, but I suppose what the issue would be if they signed a contract, let's say, that they're willing to do it and then that they don't, it will certainly raise the suspicion of the employer and there could be disciplinary action that would arise after that. Certainly, I think, that the employer would be entitled maybe to draw inferences in respect of their failure to agree to partake in those sorts of tests. And really ultimately where the employer is left with it if they've been offered it and they don't do it or they're unwilling to attend for medicals and undergo these drug tests, the employer has the right to make a decision on the basis of the evidence that's before them.

So they may have a suspicion that someone is maybe taking drugs maybe through physicality that they have the suspicion or through maybe their work standard going down. If they refuse to do it, the employer can only proceed on the basis of the evidence that they have before them, and again, I think, at that point, it's about making a balanced and proportional decision.

The other side of it as well would be for an employee attending a medical. You will have someone that will just point-blank refuse to attend the medical. Again, you're drawing inferences in terms of and arriving at your own conclusions in that respect.

Where they attend the medical and don't answer questions, again, they can't be forced, but it's important that that's reflected and it's detailed within the medical report that's received. And sometimes they will do the medical and they'll say and we see an awful lot now that the employee wants to see the medical before it's released to the employer, because they want to maybe make sure that it's correct and what they've said to the doctor is reflected in it, or sometimes you'll have that the report is sent out simultaneously to both. But it would be unusual if they've attended the doctor and then refused to have the medical provided for, and there might be an issue over costs there if they've agreed to go, but they won't agree for it to be released.

So there's a lot to consider there, but ultimately the employer can only essentially make the requests. If the employee refuses to comply, then the employer is entitled to draw an inference and make a decision on the basis of the documentation that they have.

Related Article:

Ciara Fulton on How to Manage Sickness Absence - The Do's and Don'ts

This article is correct at 01/12/2017

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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