Managing Absence From Work

Posted in : Supplementary Articles NI on 23 April 2020
Louise McAloon
Worthingtons Solicitors
Issues covered:

Managing sickness absence is an essential function for employers and effective management can help boost productivity and employee well-being. Effective strategies should both help employees stay in work and return to work, but also provide support for them when they are unable to attend work. The CIPD reported in their Health and Well-Being at Work 2019 survey that the average level of employee absence in this reporting year (5.9 days per employee per year, or 2.6% of working time lost) was the lowest ever recorded. However, unsurprisingly, the CIPD reported that mental ill health is increasingly prevalent as a cause of both short-and long-term absence.

During the current Covid-19 pandemic it is likely that sickness absence levels will increase and mental health well-being could suffer due to prolonged isolation from others. In this webinar Louise McAloon and Dr Philip McCrea outline some suggestions for dealing with coronavirus and non-coronavirus related absences. Dr McCrea outlines some useful tips for maintaining contact during absence.

The Recording


Rolanda: Good morning, all and welcome to our webinar on managing sickness absence with me Rolanda Markey from Legal-Island, Louise McAloon, partner and head of employment law at Worthingtons Solicitors, Dr Philip McCrea, Chief Medical Officer of BHSF. We also have Peter Fitzpatrick from Legal-Island listening in to help with any technical assistance. As we are all working remotely like most of you are, you must please excuse any minor interruptions during the course of this morning's webinar as we grapple with all the challenges that home working can create. And today I was watching the "BBC News" this morning and they were having trouble with interviewing a doctor. So it's good to know that even the professionals have difficulties as well.

In this webinar this morning, Philip is going to focus on the role of occupational health and dealing with mental health issues during this pandemic plus the future when all returns to normal. And Louise will focus on more general absence issues that have arisen during the current pandemic. Before we get into the detail of the webinar, we have a couple of short poll questions to try and find out a bit more about our audience today. You should see the questions appear on your screen and you basically tick whichever one would apply to you. Okay, so I just launched the first one.

Poll Result 1

Percentage of employees in organisation who have been placed on furlough

Poll Result 2

Shielding for health reasons

Poll Result 3

Attendees mostly use email and telephone calls to keep in touch working remotely.

So just to kick off, I'm going to over to you, Philip, just to talk about mental health, the impact, I suppose on mental health of remote working because bear in mind, a lot of people perhaps live alone and can feel quite isolated during this period of isolation. Over to you, Phil.

Mental Health Awareness

Dr McCrea: Okay. Sorry about that. I hope everybody is staying safe and well. And I thought today what I would do is sort of give an overview of the situation. If you could move to the next slide, please, Rolanda, and give some statistics on mental health just for background purposes. There was a very significant piece of research that took place in 2017, which was organised by Mental Health at Work. It discovered or identified that 15% of employees who disclosed a mental health condition to their employers faced dismissal, disciplinary action or demotion. Not only that, but 60% of employees disclosed that in the previous 12 months they'd had a mental health condition.

And yet despite that, less than one quarter of managers had received any training in mental health and 35% of employers have no facilities to support employees with mental health problems. And only 11% of people felt confident of disclosing their condition to their manager. Forgive me. My slides changing, it doesn't appear to be working. So what I'll do is just continuing discussing the situation. Many people think that mental health conditions or illnesses of middle aged or older life, lots of myths, 75% of all mental health problems begin before the age of 18.

And in the UK today prior to the recent pandemic, every day 150 children are turned away from an NHS mental health trust because of lack of resources to treat them. Those are the mentally unwell children of today who are likely to be the mentally unwell adults of the future. I've carried out over 110,000 consultations in my 38 years as an occupational physician, and around 40% of absenteeism is currently as a result of mental health problems. We expect that increase to around 70% over the next 2 to 3 years. And the recent pandemic is probably going to exacerbate that statistic.

When I talk to employers, the two key causes of absence in every single customer in every single industry are mental health problems and musculoskeletal problems. So it's essentially an epidemic of illness but we are unable to treat using our public health or national health resources. Now, the question I asked is why should not be? Why have these conditions manifested so recently? Probably a combination of reasons because we've always identified a number of significant life stressors, redundancy, bereavement, moving house, relationship issues, health issues. But on top of that now, we have a very, very demanding lifestyle. People are very busy. People are contactable and many working individuals have care responsibilities with looking after children or elderly relatives or dependents.

So in other words, many of us work at the extremes of our capability. And that is successful as long as everything moves smoothly. But when something goes wrong, people simply do not have the resources to cope. I think that is largely the explanation for the increase in mental health conditions. But how do they manifest? Because some questions have come in as to how can employers recognise or identify employees who may be developing mental health conditions? Really important because most of these conditions are insidious. They develop over a long period of time.

Many times I asked a patient or an employee, we tend to call them, can you tell me when your symptoms first began? It's not unusual to hear it started 3 years ago, 5 years ago, 10 years ago. So, these are insidious conditions. But what we tend to note or ask employers is a change in behaviour. For example, last week, I had a call from a customer who said they were worried about one of their employees. They have started to go to the car park and to have his lunch in his car rather than joining his colleagues in the county. That's a classic manifestation, isolation wanting to be on your own. Other manifestations are people who are very emotional or agitated or argumentative when they wouldn't normally be. People can be fearful, people can be distracted, lose concentration. All these are key symptoms of a mental health problem developing.

The major issue that employers often face is what to do about it because caring employers, supportive line managers will often say to an employee, "Look, I'm worried about you. I've noticed things are a bit different. Are you okay?" You will get almost in 100% of occasions a response, "I'm fine." And thereafter most managers or employees don't know what to do because employee has blocked or blanked any further discourse about it. The reason for that is key aspects of mental health conditions involve guilt, feeling embarrassed, feeling shame, sometimes in denial, believing that if I get over the weekend, it'll be better next week, or once I've had my holiday at Christmas, I'll be okay. Or once I do this, it should be okay.

So the vast majority of people are really reluctant to open up because they feel this shame, this guilt, this embarrassment. And also, they don't want to let the site down, they don't want to let the team down. So they don't want to come forward and saying, "I'm not well." And the previous statistics that I gave you at the start of this are probably justification for not coming forward.

What often happens, however, because these people are struggling, they may arrive late for work and may be disrupted. Their performance often dips. They don't meet deadlines, the quality of the work is poor. And at the end of the year when they have an appraisal or an annual review and the line manager often says, "Look, I'm sorry, last year you've had a bad year. You haven't been yourself. I'm going to have to sort of mark you down."

That often precipitates a catalytic reaction. Because on the one hand, the employee has been battling a mental health illness, trying to come into work, struggle against the odds, and suddenly they're going to be punished or financially penalised as a result. And that often is the catalyst for a sort of an outburst at such. And I see one of my slides has now reappeared, which is good.

Role of Employers in Supporting Employee Mental Health

But what can employers do about it? Well, I think the first thing to do is to look at the culture of your organisation, to look at the policies you have in place. Do they encourage? Do they value mental health as an asset? And this has to start from the top down, and spread throughout the organisation.

So I would suggest that policies and procedures are reviewed to encompass support for mental health issues. Review your employee assistance program doesn't really provide what you need. Because if there are 22% of people at any one stage with a mental health problem at work, and if 60% of people in any 12-month period have a mental health issue. The utilisation of EAPs is 4% to 6%. There's something not happening. And I think reviewing the construction or setup of an EAP is pivotal because I don't think it works.

I think companies need to support the development of compassionate and effective line management relationships. Train your managers to spot the signs and to give them the skills to intervene and not to accept "I'm fine" as a response without doing something at work. And that requires training and development over a period of time. Employers need also to address discrimination and support disclosure. Make it okay to say I'm not okay and don't stigmatise or permit discrimination in your workforce. It still goes on today in some very high profile companies.

And finally, I think one needs to value the diversity of the lived experience and transferable skills of having experienced mental health brings. You know, it's a very powerful, powerful tool if you've experienced a mental health problem. You can empathise what an individual is going through. They can be reassured by your support. It includes and comes into play diversity and inclusion as part of your recruitment and development. And actually, it will help your workforce develop and grow as a workforce if you actually value a diversity of lived experience. Rather than what normally happens is we shy away from it or we go around mental health.

I recently participated in a webinar on the 23rd of March from the World Health Organisation addressing the pandemic on the issues that have arisen within the pandemic. Many fear that mental health will actually destabilise as a consequence, people getting misinformation, the restrictions on your lifestyle, the isolation that is occurring as a consequence of lockdown and the stigmatisation of various workers, people going to work, people going out exercising are now being stigmatised. So they were alerting professionals to the fact that they expect significant levels of increased mental health in the community as a result of this lockdown.

Keeping In Touch

So what should you do? Keeping in touch is critical. In our business we have a number of employees on furlough and I have a weekly call to all my direct reports. It's not about work. It's about are you doing? Is there anything you need? Keeping them in the loop, keeping them up to date with developments and making sure they feel part of the business even though they're isolated. And that keeping in contact, as Rolanda has mentioned in an earlier slide, be through a variety of mechanisms. But it's important to include on top not forget the staff.

I've been asked a couple of questions in the preparation of this webinar.

Question: - OH Referrals during Covid-19

As most organisations are no longer doing face-to-face medicals or face-to-face referrals, how can we get information?

Actually, I'm incredibly busy doing remote consultations by video and telephone, and they are hugely successful. In the four weeks since lockdown began, my colleagues and I have done over 600 consultations by video and telephone. And we haven't had a single complaint from an employee about the experience, nor have we had a single complaint from an employer about the quality of the information. So for those of you who out there who feel we can't get an occupational health referral because face to face is finished, that's a myth. You can still ask for people to be assessed, and many of these employees are desperately grateful for the contact and support we're giving them.

Question: Confidentiality and Consent of OH Reports

And also a question I've been asked about confidentiality and consent.

What happens if only one member of an organisation receives the report, yet others need to see it?

I think it's very important that we operate on the principle of informed consent. So if the employee knows who you're going to send the report and what you're going to do with it and are agreeable to it, then you can send the report to one or more representatives of the company. We often send reports to group human resource inboxes, which can be accessed by a number of HR professionals because the employee is quite happy to have that done.

So I think take one myth I'd just like to dispel is it doesn't have to go to a single person in an organisation if the employee is amenable to it, then go to a number of people. Obviously once the employer has received the report, they are deemed to be aware of it. So how they actually then disseminate the information is a matter for the employer but just wanted to answer that question. Okay, I'd like to hand over to Louise McAloon.

Louise: Thanks, Phil. Good morning, everyone. Hope you're all keeping well and safe at home. And this morning, I wanted to just speak briefly in relation to I suppose absence, types of absence and absence management generally. I'm just not sure if you can see my slides. Hopefully, they'll come up soon. There's no doubt it's been a challenging few weeks for HR folk everywhere and indeed for employment lawyers. We have witnessed amendments to statutory sick pay regulations three times I think now since the mid-March. And I suppose we're all having to look at absence slightly differently and what might be deemed in capacity. And when people who are eligible for statutory sick pay, for example, who wouldn't have been before.

Self-Isolation During Covid-19

And I had a slide there just I suppose this morning, just to recap and summarise the types of absence we've been looking at and advising our colleagues on the last number of weeks. And I suppose one of the biggest challenges I personally have faced is I suppose bearing in mind that there is a distinction between those who are self-isolating in an initial 7 or 14 days and what I call self-imposed isolation.

Why does it matter? I suppose technically, it is important from an HR perspective that when we look at the government guidance to be aware that the self-isolating is really intended for those who are displaying symptoms and are being advised to self-isolate for seven days. And if they're in terms of the family and with whom they're living, to be self-isolating for 14 days, and then if a family member then develops symptoms that they would actually self-isolate for 7 days of the symptoms.

When you're reading government's guidance, I would encourage you to bear in mind that that is what the government is referring to when it talks about self-isolation. I know certainly when I'm thinking about parents and older people and those with ill health conditions, we definitely are using it in a wider sense and there's nothing wrong with that, but important when we are following our guidance to bear in mind that self-isolation is intended to describe that 7 to 14-day period where essentially the government has, first of all, amended the regulations to say that that will be deemed incapacity and the employee will be eligible for statutory sick pay. Not forgetting that also employees will have what I fondly recall and refer to as ordinary sick leave. So non-related to the pandemic sick leave, also we will continue to receive sick lines in the normal fashion.

And indeed it is a source of, I suppose, explanation and certification for employees who perhaps are falling between two stools and sick lines are coming in to I suppose authorise absences for periods of weeks, where people perhaps are using it as an informal version of shielding. But moving on to the topic of shielding, I suppose, again, important for today's purposes, for HR that we perhaps remember that shielding again has a technical meaning and in its purest form is where the an employee has received a letter advising them to shield for a period of 12 weeks.

There's absolutely nothing wrong with an employer agreeing to exercise their sick pay policy for those who are shielding in a more informal way, but again, for I suppose our learning to bear in mind that shielding has a technical meaning and believe it or not in advising our clients right up until last Thursday, SSP regulations had not been amended until last Thursday to recognise that those who had received a letter from the government and who were properly shielding in response to that advice were technically not eligible for SSP. I think it is really only a technical issue and the law is catching up as quickly as possible. But it has made it difficult no doubt and trying to provide accurate and technical guidance to organisations.

But we all have to make our best decisions in a reasonable and proportionate way. And certainly where we're aware that people have long-term health conditions, it's absolutely within our gift to recognise and exercise our occupational sick pay entitlements by agreement.


Our next I suppose form of absence, which we're dealing with quite a bit as obviously furlough. Furlough is a fantastic scheme that we're very, very grateful for in terms of providing financial support to staff and avoiding situations where an employer might have to initiate redundancy consultation. We're very pleased that the government guidance has come in due course.

Yes, we've had a number of revisions and we've had to wait for those, but we know thankfully do have confirmation that the furlough scheme that those who are on sick leave or who are ill are technically eligible. In terms of those who are perhaps on a short-term absence, the government guidance is clear that furlough was not intended to be a form of leave for those on short-term absence. However, if the post holder would have been furloughed in any event as part of a business structure or review, the fact that they have a short-term absence does not prevent the employer from placing them on furlough. But it certainly is a very valuable tool for those where employees maybe have health conditions but haven't received a shielding letter or caring for a relative. They're are very concerned that they're perhaps coming to work and are returning to work each day to parents or family members who have ill health conditions.

Furlough is a fantastic facility where it is available for people essentially who have maybe caring responsibilities or health conditions that don't technically fit in anywhere else. And if the employer is in a position to offer it, it is a very, very valuable tool. Unfortunately, as we're finding it obviously depends on your sector. And for those in the public sector or indeed for those in the private sector who are key workers and are unable to work from home, furlough isn't always available. And that certainly is a source of concern and anxiety for a number of staff.

Other forms of leave that we're looking at, if all else fails a period of unpaid leave and looking at using a period of accrued annual leave, which we can speak about in further detail a little bit later. So those are the types of absence that we're currently dealing with. And I suppose it's trying to navigate our way through those. But it has been challenging because in many respects, from an absence management perspective, we are used to insisting on black and white answers and having clear authorisation for leave. But there are no doubt many, many employees out there who do not have what I would call a standard sick line for an ordinary absence, who are not self-isolating within 7 or 14 days and have not received a shielding letter where we do need to think about reasonable accommodation. And in many respects, it's trying to ensure where available, that we can look at arrangements around exercising our occupational sick pay scheme by agreement in some way or indeed furlough if it's available.

Absence Management Procedures

Having a look then in terms of absence management, I suppose absence management has not necessarily been at the top of our agenda over the last number of weeks, but there's absolutely no doubt that when things start to even out a little bit from HR perspective, we will need if we haven't already, we will certainly need to consider as an organisation how are we going to categorise or address COVID-related absences within our absence management procedures. I mean, our policies and procedures still apply and should still be applied. And I suppose before we maybe go into the absence management part, if we can maybe just start at the start in terms of the notification.

It's perfectly proper and acceptable to continue to operate our absence notification procedures in the ordinary fashion. I think the key point is that recognising that not all members of staff may be able to comply just as quickly or in the format that we would come to expect. Doesn't mean to say we don't try. And I think it is important that we bear in mind that it is difficult to get access to GPs at the moment. And technically from a legal perspective, an employee who is absent you don't require certification for up to seven days whilst they appreciate policies may require certification before that. In a strict legal sense, an absence, it doesn't require that certification for the first seven days. And certainly, we can direct and encourage our staff where they are self-isolating to go on to the NHS website to obtain a self-isolation notice. And I've seen quite a few of those coming through and seems to be moving okay.

I think the key point would be if an employee isn't keeping in touch, obviously there's a duty of care to make sure that they're okay. And there is I would certainly encourage us to help our line managers to have a form of communication, whether it'd be a sample email or something prepared, just touching base to say, "We haven't heard from you. You'll be aware that we're required to hear from you within a certain period of time. We hope you're okay. Could you perhaps call me upon receipt of the email or the WhatsApp or whatever just to check in?"

And certainly, whilst I'm not sure too many would really necessarily view disciplinary action as their first priority at this time, I've no doubt that if any of these matters were to be viewed by a tribunal either in the context of a dismissal case or a disability discrimination case, they will not look too favourably on an employer that hasn't ticked the box and made sure that it is checked in on the employee as part of its duty of care. And given people fair warning, "Look, we do expect you to comply. We're giving you an opportunity to rectify a matter, a reasonable amount of time to put things right." And it's that reasonable approach that we were certainly expected to take and I'm sure we will.

It's also encouraging our line managers to keep in touch. So whether it'd be a weekly call, I think many people are remarking and worried about quieter members of staff on the Zoom meetings. And it may well be that it does need to be a hybrid approach where we have one to ones, perhaps once a week or whatever, not solely to talk about work but also to check in that things are okay. But certainly, the importance of communication and keeping a record of that communication.

So moving into then absence management. As I said, I think there's a policy decision to be had by management as to whether when it comes to either looking at short-term absence or long-term absence, we do have two options.

Disregarding Covid Related Absences?

Option one is simply disregarding COVID-related absences. Whether that is because of infection or for self-isolating purposes. And so that essentially, we would overlook those absences when we come to considering reviewing absence and considering formal action down the track. And there's certainly depending on the demographic of our absence records and our absence profiles and depending on the resources, frankly available to us, it may well be that for some organisations is the most practical way to deal with it. What I would say is that you're certainly not obliged to do that.

But what are we obliged to do? Well, we very much must bear in mind our section six duty to make reasonable adjustments under the 1985 Disability Discrimination Act so that someone who is disabled is not placed as a disadvantage. So as an absolute minimum, we really would need to ensure that we would disregard any COVID-19-related absences for employees who have disabilities, where they are essentially more likely to be at a disadvantage and disadvantaged and more likely to be at risk of dismissal or dismissal sooner if we take into account to their COVID-19-related absences.

So certainly, it's always it's one of those two approaches that we need to consider as a policy perspective as an organisation. And I suppose that there will not be a one-size-fits-all but I have no doubt that when again in the context of a short-term dismissal or a short-term absence, for example, if an employee has already moved through earlier stages, they may have went into the pandemic on a formal warning or the equivalent of a final written warning. I've absolutely no doubt that an industrial tribunal, they are an industrial jury. They take judicial notice of many things, both in their own world and in an industry generally. And they will very much expect that the employer will exercise its discretion that certainly we would not keep the absolute trigger points that there would be some sort of account taken and whether that's for a greater level of absence or certainly something more than the basic trigger point to allow for the fact that this is a public health issue. It's a public health crisis.

And it's entirely understandable that some employees have elected where they're not able to work from home and that is a logistics issue. It's entirely understandable why some people have decided to place themselves in isolation. So it is something that we're going to have to take into account and certainly go beyond what I would view as our standard trigger points and a form of reasonable adjustment, if you will, whether they're disabled or not.

Annual Leave During Furlough

Finally, we are receiving a lot of queries in relation to annual leave and furlough. I know it's technically of the issue of sickness absence. But late last week, we got confirmation from the government that employees can seek to use annual leave whilst they're on furlough. This would be obviously a situation where we would be required and the guidance confirms we would be required to top up the 80% to 100%.

Oddly, I got a query from a client not too long ago who said, "Well, an employee wondered if we could use, let's say, one day's annual leave to top up five 20%, which was quite a novel way of looking at it. And certainly, my view was, "Look, it doesn't matter who's paying the 80% or the fact that the employer may be reimbursed 80%. But it is simply one day's pay. So know it would be the employer is paying 100%. Provided as eligible for the furlough, it will be reimbursed the 80% from HMRC. Whether or not employers can enforce the use of annual leave has been a matter of some debate.

The guidance is entirely silent as to whether employers could require employees to take annual leave whilst on furlough. And certainly at this time and to avoid a situation where you would perhaps not be reimbursed and cash flow being such an important issue for business right now, certainly my view would be that it's unwise to enforce employees taking annual leave whilst on furlough. And certainly not until you have confirmation that this is something that is permissible from the government's perspective. So I know there's a number of questions have coming in, but perhaps we can deal with those after.

Peter: Okay. Thank you very much, Louise. Before we move on to questions, Rolanda, as some of you may have guessed, is experiencing some technical issues this morning. So we're really sorry that the slides didn't work as expected. We'll make sure they're sent out in the post-webinar email. So keep your eye out for that.

Question: Stress Risk Assessments

Some questions came in both before and during today's webinar. So if that's okay, we'll start with that. Dr Philip McCrea's questions first. The first question up is,

"Does Dr McCrea have any specific advice on conducting stress risk assessments at this time? These are being conducted due to mental health concerns."

So, Philip, could answer that one?

Dr McCrea: Yes, sir. Thanks, Peter. The stress risk assessment as an assessment is a very nebulous and intangible concept I have to say and increasingly I find it not to be a tool that has much validity. Because it all stems back to how do you measure stress? How do you assess it and how do you actually audit it? And I think it's impossible at the Health and Safety Executive standards. I'm not a fan of and people who know me know that because I find them unwieldy. In fact, I've met very few employers who use them. I think what has to happen is an individual, the employee, I think a conversation or a consultation has to take place to evaluate whether individuals are feeling up their work environment, their situation, and indeed the workload is causing them some difficulties.

There are three aspects with this. First of all, the work environment. Many people who are working from home need to have adequate facilities to work from home to avoid not only musculoskeletal problems but also mental health problems. And most employers now would have what is called DSE checklist or a workstation checklist that they can send to the employee email and ask them to complete. And essentially what it does, it asks people to confirm whether they feel their setup is adequate for purpose. And if not, we grant our team within limits to purchase suitable equipment to ensure that they can work safely and effectively and then to claim it back. So that currently is what organisations are doing to a limit. So that's a workplace assessment..

As we're going through the workload as such, essentially people fall into two categories where they get into difficulties. Those who are copers and those who are avoiders. Copers are people who simply are overwhelmed with a deluge of work. What we find in the current pandemic situation is with percentages of employees who are on furlough, the remaining employees who are working are a lot more stretched because of having to pick up workload that would ordinarily be done by their colleagues. And that has fuelled some discourse and some discontentment. I think it's important to measure and monitor the workload of an individual and that can be done quite simply by questionnaire, but also by ensuring that people are taking regular breaks. If most people working from around computers or devices of some instruction, so that can be monitored and measures and breaks need to be taken. And also in your regular catch-up meetings, one-to-one conversations, check up on the workload is important. Those are the copers. What we want to do is ensure they don't become overwhelmed and overloaded.

The avoiders ought to be people where there is a skill training or competence mismatch being the demands of the job that they're being asked to do and their abilities or capabilities. Those people become pretty stressed out fairly quickly. So I think a skill check, a review of competencies are part of their personal development plan that most people will have, and also training is important. What we have used in our business and employees who are on furlough, we have encouraged them to participate in training, which one is allowed to do when on furlough, make sure their skills are developed and kept up to date. So I think a sort of register of skills and training needs to continue. And most training today can often be provided remotely. You package those three things together, I think that will constitute, in my opinion, pretty effective risk assessment.

Question: OH Reports

Peter: Thank you very much, Phil. We've got one more question for you, which is quite a long one. So it's quite small on my screen as well. So I'm going to just read it out here.

One issue that keeps cropping up for us is the question confidentiality and the sharing of occupational health reports by our in-house occupational health advisors of the organisation. Currently, OH will not release an OH report to the organisation without the consent of the employee. Where the consent is sought, OH will only share the report with named individuals rather than the organisation. This means that they'd be expected to provide the individual names of all those involved in handling sickness, absence-related grievances, appeals, etc., which would mean going back the employee's consent at different stages of the process.

So under GDPR, that the organisation would be the data controller in this instance, and the organisation requests or commissioned the report. And it's the responsibility of the organisation to ensure that the report is handled in line with GDPR regulations and special category data. Therefore, it follow that when dealing with sickness absence related grievances, is it okay for the organisation to take responsibility for providing that data to the relevant parties involved in the grievance? The problem is that OH abide by GMC regulations, which apparently requires more specific consent. In addition, I understand that the consent in itself is not in itself sufficient as a sufficient reason for sharing this information. Would this fall under the legal reason for sharing data?

Dr McCrea: Well, I'll defer to my colleague about the aspect, Peter, of the legal but I touched on this at the start and I'll just go back over it again. And this is this is a common concern. And, first of all, I think let's be pragmatic about it. And I think GDPR has probably introduced a number of additional layers of confusion and concern and even paranoia I have to say. I think that if we go back to fundamentals, the information that one obtains during the course of an occupational consultation is category one, the most sensitive medical information. Absolutely. So the employee is the owner of the information is the person who needs to give consent to its release. And that consent has to be informed and by informed they've got to know what's going to happen to that information.

Then what I do in every single consultation I take place I explain this to the individual at the start and I explain to them that if they tell me anything during the consultation that they either wish to keep confidential or do not wish their employer to know, I will keep it absolutely confidential. And that gives them reassurance that pretty sensitive information won't be put in a report that may be seen by a number of people. To be fair, in a lot of cases the employer doesn't need to know what level of sensitive information. The employer needs to know what's the matter? What's the cause? Where are we at? What's happening? Can we get them back to work? Do we need to put adjustments in? What's the outlook? Etc. Etc.

So the sensitivity of the information itself isn't necessarily that relevant, but it's the employee that, I know that you're going to send my report to X, Y and Z or X, Y, Z, A, B, and C, and I agree to it, and GDPR, all the consent rules are met. BMC is okay. The patient, the client, the employee has consented and has been informed consent. In other words, they understand what they're consenting to. I have never had an issue with that. There is a fallback where you can often advise people, but they can see the report before it goes to the employer. But in the vast majority of cases, they are reassured by it.

Some of my colleagues who do remote consultations suggest that as part of the remote consultation, you should complete your report, hang up on the telephone call or video call, do your report, then contact the employee again, read through your report so they understand what's going to the employer and then get their, as it were, subsidiary consent to its release. Certainly, something that you can do.

But simply as long as the employee understands where the report is going and is agreeable to it, that's all that needs to happen. I think the occupational health provider is probably being slightly unduly cautious. As I said at the start of my talk, we have a number of customers where we send the report to an HR inbox or to a HR advisors dot at the employee. And we know that it's going into a human resource generalised inbox that can be accessed by a number of HR professionals who are allowed to access that. And the vast majority of cases, I don't think I've ever had an employee who said no. Normally, the GMC will advise you to send the report to the person who made the referral. We call it the referrer. But that referrer can be an organisation.

So within reason, we would send it to a group of people in the organisation who would exercise the appropriate discretion in the subsequent dissemination of the information. So I think your occupational health provider is probably being unduly cautious and unnecessarily restrictive and I think you just need to go back to them and tease this out.

Louise: Yeah, I would, I would certainly agree with Dr Phil there. I think from a GMC perspective, I'm not really an expert in that area at all. But the OH assessor is not the treating physician. And from a data protection perspective, of course, the employee must consent to the release of the report. But the release does not need to be limited, in my view to individually named members of staff. I have encountered fairly reasonable requests that it would not be released to someone who is the subject of a grievance that the employee has raised perhaps which is understandable and common sense. And I suppose the other issue that I very much encounter in practice, and I suppose is important maybe to flag it at this time would be in terms of the referral.

The referral is the personal data of the employee. And there are a number of employers out there who seem to be perhaps under the illusion that they don't have to share that with the employee and it's quite frustrating because the employee can be very anxious as to why they're being assessed, do they understand why they're being assessed. And I certainly would encourage all employers to share the referral in advance of the assessment because it is the personal data of the individual. And they're going in with their eyes wide open as to the reason for their assessment.

Question: Furlough

Peter: Thank you very much, Louise. I've got two more questions for you here.

The first of which is if a business gradually reopens but does not require full staff numbers to begin with, how should an employer decide who should remain on furlough and who should not?

Louise: I think, it very much has to be guided by operational need. From the HR point of view, I think we have a job to do to make sure that that decision making is free of bias. That we are not making decisions based on protected characteristics, particularly in relation to disability. But having even on an A4 page form of a business plan or a review of our operational needs and saying we need skeleton staff in X, Y, and Z parts of the business. We have X number of staff. We will only require Y number for an initial period of time. And I know some clients are certainly approaching this where they can in a rotational manner because some employees, perhaps rightly feel that they're shouldering more work than others.

And if it's possible to bring people in on a phased return where we rotate the furloughs who come in for a week, come in for two weeks and then off for three weeks bearing in mind to avail of the furlough, you're going to have to place them off for a minimum of three weeks again. But certainly, rotational furlough is definitely an option. But I suppose just doing the HR review and check over with management to make sure that we're not selecting people for what, to my mind, will be protected characteristics or unlawful discriminatory reasons but operational need is our priority.

Question: Dismissals During Covid-19 Pandemic

Peter: Okay. Thank you very much, Louise. One last one for you. "Does Louise have any advice around dismissals at this time and whether to see if to conduct a disciplinary that could result in dismissal via Teams or Zoom where the trade union has been invited?"

Louise: We all obviously have to bear in mind our statutory dismissal procedures still apply and I supposed more generally than that are the obligation to due process and making sure that the employee has a fair hearing. What I am advising at the moment is that, I suppose as a precursor to that is that where possible and I appreciate it's not always possible, we should be offering a face-to-face meeting with appropriate social distancing in place. To my mind, a disciplinary hearing that could result in termination of employment is possibly the most important employment meeting that could be taking place right now.

And where we can offer a face to face with two meters apart and appropriate hand washing facilities, that should be in the invite to the letter. But simultaneously I recognise and we should be saying to our employee, "We understand that people may prefer not to have a face-to-face meeting and therefore we're offering Zoom or Teams with the trade union also joining, the trade union rep joining the call as a video conferencing, we're offering that as an alternative." And what we're finding is that many employees are availing of the video conferencing or indeed simply a phone call conference. But I would think it's important if we are in terms of attitude to risk that we should really think about if we can offering a face-to-face meeting with social distancing in the hope, frankly, that most people will elect not to do it, but I would be concerned that there could be a few that were missing out and not making that offer.

Peter: Okay, thanks very much to Louise McAloon and Dr Philip McCrea for this morning's webinar. If you keep an eye on your email so on this webinar, we've got a really special offer coming out for our remote working employee well-being toolkits. So keep an eye on your emails in a couple of hours' time out. The post-webinar email will also include a link to the recording of this webinar. That will be up this afternoon. The full transcript will be available next week. So thank you very much, everyone.

Louise: Thanks, Peter.

Dr McCrea: Thank you, Peter


This article is correct at 23/04/2020

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Louise McAloon
Worthingtons Solicitors

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