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

Every year 140 million working days are lost to sickness absence, the cost to employers in sick pay and associated costs is £9 billion a year.

The State spends £13 billion annually on health related benefits according to the Independent Review of the Sickness Absence System in Great Britain by Dame Carol Black in 2011¹. Therefore, it is not surprising that employers are keen to understand how to manage sickness absence effectively.

Effective Absence Management 

Effective absence management involves finding a balance between supporting employees with health problems to stay in, or return to work. Ensuring that the employer’s business objectives are not compromised by repeated short term or long term absence. 

This can be achieved through a combination of clear and comprehensive absence management procedures and good communication and early intervention by line managers.
 
In this article, Ciara Fulton, Partner, Lewis Silkin’s employment team discusses the dos and don’ts of managing sickness absence for employers.

Procedures

Whilst some level of sickness absence is inevitable in any organisation, having appropriate policies and procedures in place for dealing with sickness absence can achieve positive results. These policies should state the standards of attendance expected of the employee and provide employees with information on any terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay as required by Article 33 (4) (d) of the Employment Rights (Northern Ireland ) Order 1996).

If an employee is absent or likely to be absent for a long period, the employer should seek further information about their absence and obtain a medical report if appropriate. 

Absence Management Procedures should set out the respective rights and obligations of both the employer and employee and include details of:

• Notification of absence procedure requirements – when and whom employees should notify if unable to attend work;
• Evidence of Incapacity – when a self-certificate is required and when a fit note is required;
• The employer’s right to require an employee to attend for medical examination by a company doctor and to request a report from the employee’s doctor with the employee's consent;
• Any contractual sick pay terms and statutory sick pay;
• Absence management meetings;
• Return to work interviews;
• The circumstances in which adjustments may be made to assist the employee to return to work;
• The Procedure considering dismissal on grounds of capability or a reference to the employer’s dismissals procedure; and
• Allow for appeals against termination.

The Labour Relations Agency’s Managing Sickness Absence Guide contains useful information on absence management procedures as well as a draft procedure.

Clearly it is not sufficient to simply have procedures in place. Early intervention and good communication are key to managing attendance.

Investigate the cause / reason for absence 

Employers should investigate the nature, extent and likely duration of illnesses. In order to do this, the employer should ask employee for evidence of incapacity for work such as a self-certification form for absences of a week or less or a Statement of Fitness for Work (“fit note”) for absences of more than seven days. 

Fit notes were introduced on the 6^th April 2010 and allow GP’s to suggest ways of helping an employee get back to work rather than that he is simply fit or unfit for work. More detailed guidance on Fit Notes can be found on www.dwp.gov.uk/fitnote.

If absences are short-term and intermittent, the investigation should consider whether there is any underlying cause (medical or otherwise). Encouraging employees to discuss problems at an early stage so as to identify where reasonable adjustments can be made can prevent further absences.

Maintain contact with employees

Maintaining contact with an employee who is on sick leave is key to improving sickness absence levels. The type of contact may vary according to the nature and size of the organisation and also the nature of illness but may include emails, telephone calls and meetings.²

It is important for the employer to balance their support and concern for the employee and their desire to secure a return to work with distance in order to allow the employee time to recuperate.

Overbearing or intrusive contact may be counter-productive and may result in allegations of harassment. However, contact which is too infrequent may leave the employee feeling out of touch and undervalued.

Conduct return to work interviews 

Return-to-work interviews are one of the most effective tools for managing short-term sickness absence. They should always take place regardless of the length of period of absence. 

They provide line managers with an opportunity to start a dialogue with staff about underlying issues which might be causing the absence so these can be addressed before they escalate.  

Return-to-work interviews also provide an opportunity to discuss with the employee whether they require any support or assistance to reduce their levels of absenteeism or, indeed, in returning to work after an illness. The LRA’s guide to Managing Sickness Absence (see above) contains useful guidelines on the purpose of the return to work discussion and how to prepare for it.

Train Line Managers

Line managers have an important role to play in the management of absence. They should be trained in the organisation’s absence policies and procedures and their role in same; how to act upon any advice given by the employee’s doctor; maintaining records; the role of occupational health services; proactive measures to support employee health and wellbeing; the management of complex cases, including the disciplinary aspects of absence and associated legal issues such as potential disability discrimination issues, the operation (where applicable) of trigger points and return-to-work interview skills.

Retain records of contact made 

It is important that an employer keeps confidential records of medical certificates and correspondence to and from the employee relating to their absence.

An employer should ensure that accurate and legible records of conversations, voice mails and meetings are retained. If the employee is ultimately dismissed on grounds of capability, the employer will need to show that they acted reasonably in deciding to dismiss on this ground.

However, employers must be careful not to breach the Data Protection Act 1998 (DPA) when they collect, use and store information about their employees’ absence. Details of an employee’s health, either physical or mental, are categorised as ‘sensitive personal data’ under the DPA. Further information on data protection considerations can be found at www.ico.org.uk.

Obtain medical advice 

If an employee is absent or likely to be absent for a long period, the employer should seek further information about their absence and obtain a medical report, if appropriate.

An employer should always consult with a medical practitioner and take reasonable steps to ascertain whether / the extent to which the illness affects the person’s ability to carry out their role before they make any decision about the employee’s capability. 

Obtain consent to release of medical records 

Employees must be notified in writing or a proposal to obtain a medical report and must provide their consent as this process gives rise to data protection issues involving the processing of sensitive personal data. The employee will need to give their consent under the Access to Personal Files and Medical Reports (Northern Ireland) Order 1991 if a medical report is requested from their own doctor. Further information and a sample consent form can be found at:

https://www.lra.org.uk/images/publications/microsoft_word_-_consent_-_long_term_ill_health-2.pdf

Plan and co-ordinate return to work plan 

In cases of long-term absence, it may be important to compile a return to work plan with the employee. This plan will need to be individually tailored to suit the employee’s particular circumstances. Awareness of potential disability discrimination claims is also crucial. 

Disability Discrimination

If an employee’s absence is as a result of an illness or injury which amounts to a disability for the purpose of the Disability Discrimination Act 1995 (as amended), employers must make ‘reasonable adjustments’ where a provision, criterion or practice applied by or on behalf of an employer or any physical feature of a premises occupied by the employer places the disabled person at a substantial disadvantage in comparison with persons who are not disabled.

The employer’s duty is to take such steps as it is reasonable in all the circumstances to take to prevent this. The types of adjustments that employers might be required to consider include:

• Making physical adjustments to the premises;
• Allocating some of the disabled person’s duties to another employee;
• Transferring the disabled person to another vacant post;
• Altering the disabled person’s working hours (which may include part-time working, flexible hours or a phased return to work);
• Assigning the disabled employee to a different place of work or training;
• Giving or arranging training or mentoring; and
• Acquiring or modifying special equipment. Whether or not there is a duty in a particular case will most often depend on whether the adjustment was one that was reasonable for the employer to provide.

Contemplating dismissal

Once medical evidence has been obtained and analysed, it may become necessary to consider dismissal if the person is no longer capable of carrying out their duties. Employers should issue warnings or cautions in accordance with their disciplinary or capability procedure prior to dismissal.

The following is a list of key considerations for an employer to consider when considering dismissal on grounds of capability:

• The nature of the employee's illness and the job
• The prospects for that employee returning to work / duration of the illness
• The employee's length of service.
• The treatment of other employees in the same or similar circumstances.
• The need for the employer's business to cover the work of that employee.
• Has alternative employment been considered;
• Whether the illness/injury resulted from the conduct of the employer.

In this jurisdiction, an employer is required to follow the Statutory Dispute Resolution Procedures prior to taking any decision to dismiss. Otherwise, the dismissal will be deemed to be automatically unfair.

Accordingly, once dismissal is contemplated, the employer must write to employee to invite them to a meeting. The employee must be given sufficient information about the circumstances that will be taken into account and the possible outcomes, to enable the employee to respond meaningfully.

The employer must hold a meeting with employee and give them the opportunity to present their case against dismissal. The main question is whether it was reasonable to expect the employer to keep the employee's job open for any longer.

Any subsequent decision to dismiss must be confirmed to the employee in writing. The letter should confirm the reason for dismissal, the effective date of dismissal and offer the employee the right of appeal from the dismissal decision.

If the employee appeals, an appeal meeting should be arranged and the outcome confirmed in writing to the employee.

Provided the employer has come to a reasonable decision following consideration of the above factors, they will have acted fairly.

Further information on disciplinary procedures can be found in the LRA Code of Practice on Disciplinary and Grievance Procedures.³

Conclusion 

The foregoing is a summary of the main dos and don’ts for employers in managing sickness absence. Putting in place policies and procedures for managing sickness absence need not be difficult. A wealth of information is freely available from the sources mentioned above. However, a combination of clear and comprehensive absence management procedures, good communication and early intervention by line managers can significantly improve an employer’s ability to effectively manage sickness absence.

¹ BLACK, C. and FROST, D. (2011) Health at work: an independent review of sickness absence.

² Sickness Absence – Managing return to work and recording absence

³  LRA Code of Practice on Disciplinary and Grievance Procedures