Cold and flu season is around the corner – are you ready? Catch up with our monthly Employment Law at 11 webinar to get practical guidance on managing sickness absence, including SSP, OSP, reporting obligations, and holiday entitlements. Stay compliant and support your team with confidence!

Transcript: 

Christine: Good morning, everyone, and welcome to Employment Law at 11, sponsored by MCS Group. My name is Christine Quinn. I'm from Legal-Island. I'll be facilitating today's session. I'm joined, as always, by Seamus McGranaghan of O'Reilly Stewart Solicitors.

I hope you're all surviving the storm so far. I know you've probably all got your phones on hand for the schools shutting their doors or whatever, but you'll be pleased to know I won't be rushing off. My school is staying open.

So, what are we talking about today? We're talking about cold and flu season just being around the corner. I think it's already arrived in my house. But the question is, are you ready in your workplace for cold and flu season?

We're going to offer some practical guidance on managing sickness absence. We're going to cover SSP, occupational sickness, want to maybe look a bit around reporting obligations and holiday entitlements to help you stay compliant.

Please feel free to submit your questions at any time using the Q&A feature, and I'll put them to Seamus as and when.

Thanks, as always, to our sponsors, MCS Group. MCS helps people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

Now, I'm going to kick off, as always, with the polls. Gosia is just in the background there getting them organised. So, first question, what is your biggest challenge when managing sickness absence? Is it keeping communication open without being intrusive, understanding statutory obligations and entitlements, managing workload redistribution in the company, or handling disputes or grievances related to absence? If you could all place your votes there and we'll see what it is that brings you here today.

I can see everyone voting there. Let's have a look at the final statistics there, Gosia. We've got a big 48% who are handling disputes and grievances related to absence, and then we've got second in line there keeping communication open without being intrusive.

Seamus, I would say disputes and grievances, I could have guessed that would be a big one.

Seamus:  Yeah, certainly. I mean, my thinking was that it was going to be keeping the communication open without being intrusive, because that is a difficult one. I think, for a lot of people, that's a difficult one to manage, especially whenever they have an employee at the other end of the absence that is maybe being difficult or is not being open, and that idea of trying to go to ground whenever they go on absence. But definitely, that is always the position around . . .

I think it's important that there's an understanding of what is the reason for the absence. I think for most of the absences, we know when someone's genuinely sick, or if they have a surgery coming up. There's an understanding of that. But it is those difficult circumstances where you have somebody that has a grievance or a disciplinary taken against them, and then the sick line comes in. And those are probably the most difficult ones to try to manage in a professional way.

Christine:  Yeah, brilliant. Thanks very much, Seamus.

Gosia, if we could have the next poll up there. Do you monitor employee behaviour while they're on sick leave? I think we've always had a lot of questions about this. So, if you could vote. Yes, who can resist a sneaky look at their socials? Secondly, no way, the less I know, the better. Or thirdly, it depends on who it is and/or the circumstances.

I can see the votes going up. There are a lot of very honest people out there, or else they're pretending that they're very honest. Maybe not as nosy as I am, then.

Gosia, let's have a look at the final results there. There's only 4% of you are having a sneaky look at the socials. You're probably the 4% that sleep the best at night, I would say. And 51% are saying there's no way that you want to know. But then 45% are saying you might under certain circumstances.

Are they just more honest than me, Seamus, or do you think there's . . .

Seamus: I mean, I think it's an interesting one, and certainly it's an interesting one when it comes to a tribunal case where you as the employer could present direct evidence from the likes of social media where you have an employee on long-term sick leave who is partying it up and doing side hustles.

I did a case a long while ago, it is a published tribunal case, where we had lots of evidence from social media that, during the sick leave period, the employee was undertaking alternative work, and also that the employee was attending sporting events as a spectator and not where they were competing in the sporting event.

And video footage online that had been placed on social media where the employee was clearly enjoying themselves, having a few drinks, shouting, singing, and at the same time we were dealing with a circumstance where there was a sick line in of a very debilitated employee that just didn't add up.

These were issues that we raised at the tribunal with an interesting response, I have to say. The tribunal judge didn't take it as well as what we had anticipated that the tribunal judge would, and we were somewhat frowned upon then for producing the evidence.

But I think different styles, different judges take different views. We had clear, direct evidence that . . . Ultimately, there was a dismissal, and it was an unfair dismissal case, and we were saying that there were issues around the genuineness of the absence and the sickness. It was that versus the medical evidence, really. I think those were the two pieces of evidence that the judge had.

We felt our evidence was clear, but ultimately, the judge didn't take it that way, which was disappointing for us. But lessons to be learned in it.

And I have to say it wasn't that there were surreptitious observations being taken or that there was sneaky video footage running. This was all stuff that the employee had put up on their own social media.

Christine: So, it really might come down to the judge on the day. Yeah, I've seen other ones where it is your bit of a mic drop moment. But that's unfortunate. It just depends on the judge on the day.

Brilliant. Thank you very much, everyone, for getting involved in that.

Throughout the webinar, Seamus will be referencing the LRA guide on absence, so it's been dropped into the webinar. You'll find that in the handout section. You can have a look at that now, or later on you can download that for yourself.

Seamus, let's get things kicked off. We actually do have a question already, so thank you very much for that, and we'll maybe open with that. So, return-to-work interviews, is that line managers or HR? They go on to say, "I'm getting pushback from managers, as they say they already updated the system with the facts". So why do they need to do more? What would your view on that be, Seamus?

Seamus: I think it's really important to do a return-to-work interview whenever someone's been off. I think even if there's been a relatively short period of absence, whether it's been a week or a couple of days or whether it's on a long-term basis. Certainly, on a long-term basis, there should absolutely be a return-to-work interview. But I suspect that the question is more based around the short-term absence.

It can be really frustrating. It can be deflating for the HR manager or for the line manager to have to meet repeatedly with the same employee. I like to call them the Monday-Friday cruise, those employees that will always take a Friday. Or if there's a long weekend coming up, suddenly there's an absence on a Friday, and they're making the most of it.

And dare say you have a look at their social media, you might find that they're off up at Portrush or Portstewart awaiting the caravan for the long weekend. That's the very cynical side of me this morning, I have to say.

But these are important, and there are a couple of reasons as to why return-to-work interviews are important.

It's an opportunity for you to learn from the employee as to what the reason for the absence was. It's an opportunity to flag up to the employee what the expectations are around sickness absence.

Not all employers have trigger points within their policy and procedure, and ultimately, we'll be banging on for a fair bit here this morning about that you do need to have an absence policy and procedure in place. It needs to be clear, and it needs to be consistently applied. But ultimately, you need to be clear with the employee and relay what's contained within your policy and procedure around sickness absence.

I mean, some of the public sector have very clear trigger points that once you hit a certain number of days of absence, it will render you to investigation or disciplinary or possibly what the outcome of that disciplinary even will be.

You don't necessarily need to have trigger points contained within your absence policy and procedure. You could take a wider approach to it, but you do need to be clear with the employee about what the expectation is around sickness and when it might start to create a difficulty and a problem. So definitely, I think that needs to be made clear.

It also helps you as the employer understand what is going on in the background of the absence. Is this an employee who is a faker and is just taking days off because they're tired and they know they're going to get paid, or that there's something on at the weekend and they're abusing the system? Or is it a wider problem of this is an employee maybe with an underlying issue that needs to be addressed?

It helps you look at the trends, it helps you look at the underlying causes of the absence, and then you can explore from that really what action you need to take within the organisation itself around absence and find the most appropriate way to address it.

I think that there is sometimes a reluctance, sometimes it's just so demotivating to meet with the person over and over again, but it's a way for you to communicate. And ultimately, if you're going to head down a disciplinary path, you need to have had your ducks in a row. You need to have had those meetings.

The expectation of a tribunal hearing a case will be, "Well, what was the background to this? What were the minutes of the meeting as regards to the return to work?" And it's a full exploration.

You might get to a point where you're saying to the employee, "Listen, there are underlying issues here. Is it that you need to come into work and maybe look at a change in the hours? Do you work 10 to 6 rather than 9 to 5 if you have problems in the morning whenever you're getting up? Or is it that we need to look at working-from-home days or even a reduction in your working hours to try and resolve the problem?" You'd be hoping that the signal and the messaging that you're getting through to the employee as a result of that.

Let's put it this way: If it's not monitored and if it's not something that's brought to the employee's attention, the employee is going to consider that this is okay to do. The behaviour is going to keep happening. There'll be a repetitive nature to it and ultimately it could end up in a breakdown of the working relationship. So it's better to get in and get these things tackled and face them head on in a return-to-work interview.

Christine: And I think to the question of whether it should be HR or the manager, in my mind it should . . . Tell me if you disagree, Seamus. It should be the manager because it feels less formal. Once you get HR involved, it feels like it's an issue. So, I think HR kind of need to keep their powder dry until such times as official processes and policies start to be followed. That would be my view, Seamus. Would you agree?

Seamus: Yeah, absolutely. And key to all of that, the two aspects are what does your policy and procedure say, and are you following it? And two is the training of managers in relation to dealing with these issues.

The job of HR is to make sure that the managers are appropriately trained and that they're asking the right questions. Often, they'll be given a pro forma form to work through the employee with on a return-to-work interview.

But absolutely, I think there needs to be that escalation point as well, where the employee can see, "Well, I've got away with this for a couple of my absences, but if it's heading into that sort of formal aspect, we are bringing HR in". I think that it's better to have that escalation happening as well.

Always the responsibility should be with the line manager. The line manager should be coming to HR for the advice and for the guidance as to how to deal with it, but it falls to the manager, and they need to be appropriately trained on how to deal with it.

Christine: Yeah. So, whoever asked that question, hopefully that gives you the answer, to tell your managers that it is their responsibility at the moment. It's only when it becomes an HR issue that you need to be stepping in, and you need to be offside, really, to keep your powder dry for that.

We're actually getting loads of questions, Seamus. I might hit you with a few of them just to make sure we're covering off everybody's queries.

We've got a question. It's a good one. How do you define a faker? That's really going to be about you have to have all your boxes ticked and show a pattern of behaviour, really.

Seamus: Well, I think that is why the return-to-work interview is key, to be able to identify that. You might have suspicions about it because you might look at the pattern.

And before we came on, we were talking around the technology and the apps relating to sickness absence and the recording of holidays and absence. All of that really is beneficial. It's a management tool that you can look at and see where your problems are arising.

If there's a downturn in productivity, if departments are not as productive and not as profitable as they were, is it because that there is widespread absenteeism? What is the reason for that? Is it because you've got a toxic manager that is driving everybody out onto sickness leave? And do you need to deal with what the issue is?

I think that technology brings that around. The technology will help you spot the patterns also with the fakers.

My other position around that is that you need to be pressing them in relation to, at the return-to-work interview, whether it's the self-cert or whether it's a GP, but you need to be focussing on the medical evidence. Do not let employees get away through simple laziness or the fact that it's just becoming too much of a hassle to deal with to not complete their self-cert. That's their declaration as to why they're saying their absence has come around.

And if it is tummy bugs and vomiting and, "I'm not able to come in today because of that", and if there's a pattern of that happening, then are we at a point where we need to have Occupational Health come in and make some sort of assessment?

I think around that, it's really important to be prepared for your return-to-work interview. Don't just turn up with your pro forma. I think that you need to make sure that your chat that you're going to have is going to be . . . It has to be a confidential space for that to happen. You're talking about medical issues. You need to prepare your questions in advance, and you need to make sure that you know what support you can offer.

It's not a brow-beating exercise. It's not an exercise to catch the employee out or to enforce on them that they need to be in work. It's figuring out whether there's a genuineness to the absence or not. And I think that's how you will deal with the fakers.

I think if they are silly enough to put a video up online that you see as an HR because you're friends with them on Facebook . . . I'm probably showing my age there saying Facebook as well now. I think it's an old person's thing now, is it, Facebook?

But if they're silly enough to do that, or if they're tagged in photographs that you see and they've been sick for a week, but they're at a family party with a meal in front of them or a drink in their hand, that's going to actually raise suspicions. But you're entitled to ask about that.

Even if you have come across these things in social media and are a bit hesitant about saying anything, you can be open and frank and say, "This came my way. I didn't go looking for it. It came my way. It came up onto my platform. And you can naturally see the concern that this would arise within the business. What's the explanation of that? Is the nature of your illness that it only is a problem in the morning and not in the evening?" You're entitled to ask those sorts of questions.

Now, you need to do it in a way that is not harassing and that is not going to put you in the back foot, where the employee is going to rush off, stay on sick leave, and put in a grievance against you because they feel that you've been harassing them.

I think you need to be clear that you're coming at it from a business perspective and help the employee understand the reason as to why you're flagging it.

Christine: Brilliant. Thanks, Seamus. We have another question. It's very related to it. So, we've got an employee who keeps going out on sick leave in and out, comes in to work, then has to be sent home. Calls in for one reason, then the next day it's a different reason for sickness. They've spoken to them, but then the same cycle continues again.

The person is saying they don't believe it's being managed within the company's absence policy by the manager. And when they go to the manager, the manager says, "Oh, sorry, it's just kind of drifted".

So how do you pull back, or how do you rectify that, yes, it hasn't been dealt with great in the past? How would you then pull it back to get it on track again?

Seamus:  Well, I think if there's a period of absence, you need to monitor and deal with that absence. And again, nobody is saying that you need to be harassing the employee, but I do think that you need to be keeping in contact with the employee. I think that you need to tell the employee what the process is going to be during their absence.

And even if it's a relatively short-term absence where you get a sick line in for a week, you might say, "Well, look, I'm going to contact you on the Thursday so that we can see where you're at and possibly talk about your return to work on the Monday", if that's what it's going to be.

I think it's about also pulling your paperwork together. I think it's about having something tangible that you can show the employee to say, "Look, this is your absence, and there does appear to be a pattern. What the interests of the company are or of the business is that we want to see satisfactory attendance at work, and we want to help you in order to be able to make that satisfactory standard. If we don't get to it, then it will become a problem, and we might have to look at other ways of dealing with it, including possible disciplinary action".

I think it is about having that discussion with the employee, making clear to them at you're alive to it, that you know what is going on. If you're suspicious that they are a faker, you're putting that in front of them and letting them know that that is the position.

Look, we've all dealt with those situations, certainly, where there have been . . . There are those employees that you say have a brass neck. They don't care, they'll just keep doing it, and ultimately, you're faced then with having to take some sort of disciplinary action.

But I think it is about having that clear communication with the employee, saying, "This isn't acceptable. It doesn't meet the expectations, and we need to get this back onto a proper footing where there is consistency in respect of your attendance".

It does flag it up if there are different ailments, and even those that come in to work for an hour and then have to go home because they're sick. There's something going on in the background would be my view in relation to that. And the only way to get to the bottom of it is either through discussion or, alternatively, sending to Occupational Health to get a report medically as to what the issues are.

Christine:  And I think in my mind, Seamus, it would probably be worth a wee bit of manager training. Maybe reissue the policy to managers, "This is a policy", and give them a wee bit of training. If it is a case of one team are doing the policy to the letter and the other team is not, that in itself is a problem, isn't it? Because it's not showing consistency.

I think if a manager is not maybe knowing what to do or having the confidence to know what to do, maybe they need a wee bit of training, and then that could maybe be the reset for the company to go, "Listen, we are taking absence seriously, and this is how it's going to be dealt with". So, everybody's clear. Would that be a bit of a plan?

Seamus: Yeah, absolutely. And I think also that if there's a specific problem within a specific team and there's a specific manager not dealing with it, then the manager does need to be brought to task in relation to it.

Look, sometimes people get lethargic over these things. Sometimes it's draining dealing with that one employee all the time who is constantly off on sick. And there's a bit of throwing the hands in the air and saying, "I give up", in relation to it.

Christine:  We've all been there.

Seamus:  Yeah, but it really isn't the best way to deal with it.

And then also, you can get into a pattern where you do deal with it, things settle, then it starts to happen again, and then you're back dealing with it again, and then the third time you come around it, you think, "I just don't have the heart for this any longer".

That really is, I think, where the manager needs to be coming to HR and having that discussion, and HR can provide the appropriate support that needs to be provided at the time.

But look, I think absolutely you need to keep on top of this. The training has to be there, and it has to be something that is seeded throughout the organisation as to how everybody approaches with a consistent and fair approach.

Christine: Brilliant. And you keep mentioning policies, Seamus. Is there anywhere where people can find a recommended policy or recommended trigger points? Where would you recommend going for that?

Seamus: Well, certainly, a solicitor can provide and assist you in relation to those things.

Christine: And we’ve knew one, Seamus.

Seamus: Yes. But certainly, there are lots of resources out there available. Labour Relations Agency is the obvious one. Labour Relations Agency have a Managing Sickness Absence. It's stood the test of time. I think August '16 is the date on it. But it's a superb document and it's typical of Labour Relations Agency. It is very digestible, and it does cover all eventualities.

But they also have an absence management policy template available on their website, and you can work through the template. You can remove parts. They've even got it highlighted for the bits that you need to give specific consideration to. For instance, in and around if you don't pay Occupational Health, they have helpful bits that you can take out then of the policy there, and it's highlighted for you.

It's key to have an absence management policy and procedure. I think that what it should do at its basics is it should define the amount of absences within a set period of time that you deem reasonable. And that's a bit broader than having trigger points, but you need to be clear with employees as to what is reasonable.

Now, some employers do hesitate around that, Christine, because they'll say, "Well, if we put that in, then they'll go, 'Sure, then we have seven days a year that we can take without people hassling us about it'." But I think, for the long term and for those that are abusing it, you need to have that sort of period set out.

And also, the time frame and the ways in which employees have to notify of their absence. There's too much now with phones of the text message and, "I'm not well today. I'll not be in". Often that's not an acceptable way. You should be telephoning in and having a conversation.

And often, when managers are busy, they end up accepting a text message, but you really need to deal with that. There needs to be maybe an initial telephone call of, "I'm not going to be in today".

You need to know in advance. There's no point in texting at 9:00. That doesn't help the business in terms of its productivity and being able to get alternative staff. They need to be saying it to you in advance, and that really does need to be enforced. Sometimes I think that that's overlooked.

And then I think also you need to talk about the potential consequences for any employee who knowingly abuses the absence policy and procedure. And whether that's formal warnings or deductions of pay or disciplinary action or whatever it's going to be, I think you need to have that in the policy itself.

Lots of other pieces around, like you do need to be clear about self-certing, how long they can do that for, and GP certification. There's an issue with GP certification because it's really difficult to get a call in with a doctor, and sometimes that can be difficult. But I think most employers are accepting of that, and I think as long as somebody's not deliberately abusing that process . . .

Ultimately, if they don't put in the sick line, they don't get sick pay. That's the sort of formal view that I take. But again, that needs to be in your policy and procedure to set that out.

And even where somebody is on sick leave or there are problems with it, you need to be able to say, "Here's the policy and procedure. Please read it". You need to understand what the company's position is.

Christine: Brilliant. Seamus, we have so many questions here. I'm just going to keep going. I think the audience has done our job for us today in shaping the webinar, so we'll keep on trucking.

We've got a question. What happens to bank holidays whilst employees are on sick? And when you give the answer, can you also include what happens with part-time staff who kind of get the prorated bank holidays and stuff?

Seamus: Well, the basics of it are the bank holidays. When it comes to holidays, an employer can dictate what days the employee has to take as regards their holidays. There might be closure periods, and the employee might put in for leave and it just mightn't be workable for the employer. But generally, the legal position is where you are sick on a holiday, you don't have to have that day counted as a holiday. You're entitled to take it on another date.

It depends on what your policy and procedure say about the holidays. Normally, the contract of employment will set out your holiday entitlement, and it will also set out what the bank holidays are.

Basic position for a full-time employee, they get 28 days as a minimum for a full-time employee, and you can include within those 28 days the bank holidays. It's up to you to decide as the company what bank holidays you're going to accept as formal holidays.

Lots of businesses work through bank holidays and don't close, but not everybody works in an office or in a bank or along those lines. It just depends on what the policy and the procedure are.

The general position is if you are ill on the day of the holiday, you're entitled to take the holiday at another time.

Christine: It's provided that you have reported as sick. You can't kind of come back in and retrospectively go, "Oh, by the way, on the 12th there I was very sick, and I need the 12 July holiday back". But if they've reported it . . .

Seamus:  Yes, they have to report it.

Christine: . . . by self-cert or doctor's note, they could be entitled to take 12 July at a later date then if that's within your holiday bank.

Seamus:  Yes. And depending on what's in the policy and procedure, yes.

Christine: Okay. Brilliant. Thank you very much, Seamus.

Another question. Is work-related stress sickness? Should you treat it differently from other types of sickness? I think it's treading very carefully, but what's your view, Seamus?

Seamus: Well, I think where an employee has a sick line that is saying that it's work-related stress, there is an obligation . . . My advice to a client would be that yes, you need to tread cautiously because the person is off sick. But if it's work-related stress, you need to get to the root cause of what the stress is being caused by and deal with it and tackle it.

So in the first instance, my advice would be that you're writing to the employee to acknowledge receipt of the sick line, that you're recording the fact that it is on the basis of work-related stress.

Often, you'll have an idea what the stress is. Not always. It could be that they've fallen out badly with a colleague and that's the result of it. Or maybe there's a problem in and around being overworked and they've maybe come and had that conversation with their manager or with HR.

But I think you're better recording to say that "We understand that this is a work-related stress matter", that the only way to resolve that is through communication and discussion. And they mightn't be fit to deal with that now, but you'd be trying to encourage them to deal with you as the employer, whether that's the manager or the HR adviser, to get to the bottom and see what resolution you can get in order to alleviate the stress.

Sometimes what an employee perceives as work-related stress is not work-related stress, and there are maybe other things going on in the background, or the problem is arising just from their own behaviour or their incompetence, and that has put the stress on. It's about keeping an open mind to the resolution of it.

But at the same time, there might be a cap in relation to what it is that you can and can't do. If the level of absence is sort of veering over the four weeks, I think that you're at the time certainly to call . . . What is long-term absence? I think, for me, it is somebody that is off . . . When you're getting up to past two weeks, into three weeks, into four weeks, certainly it's long-term absence.

You're looking then at, "Do we need to get Occupational Health support here? Do we need to have the employee attend with Occupational Health and share independently what the problems are?" Because often the employee will be much more open with Occupational Health than what they will be on a one-to-one basis with their manager or with HR. You need to keep an eye on that.

What I always say about Occupational Health is it's a great tool, it's a great resource, but it's costly. It costs money to get to get a report, and it's timely as well. By the time you get an appointment, and the time to have the appointment, and by the time the doctor or the Occupational Health specialist writes up the report and gets approval of it, it takes time.

I always think if you're going to ask for an Occupational Health report, don't just fill in the pro forma form. Ask the questions that you want specific answers to. It's one of my pet peeves, I have to say, whenever I look at the Occupational Health reports and it's all the standard box-ticking exercise. I don't think you get the value out of what you're paying for.

So, you have to be asking those key questions that you want answered for the specific circumstances that you have. And that should always be, "What can we do to support the employee back to work?"

Christine: Yeah. I was at another event during the week, and an Occupational Health person was there, and he said if there's something not clear in the report, come back and ask us. Ask follow-up questions, and they're more than happy to oblige and answer that. They've been paid for their time, so they want to do a good job. They don't want to be seeing the same people again, and they also want to keep your business. They will answer those follow-up questions. I thought that was interesting. But thank you very much for that, Seamus.

So, on to the next one. We've got, "The absence management policy outlines that the employee is expected to maintain communication throughout their absence, but this employee has not engaged with the company despite numerous emails and phone calls. They continue to submit their sick line at the right relevant time, but there's no further communication or information. What can we do?"

Seamus: Well, that can happen, in that an employee will go to ground during a sick leave period. We don't know from the question what the reason for the absence is. Sometimes when people are off due to grief, deaths, family circumstances, they're just not in a place to be able to communicate with their employer.

 You can give that its place where somebody has a life-changing issue that has happened. There will be a general understanding of that, but there will also be the aspect that we need information.

At the end of the day, you're employed in a contract of employment to provide work to the company that is required to be completed. For every absence that there is, there's a cost factor for the employer, whether it's down to loss of the person and a reduction of work, loss of productivity, whether it's having to bring a replacement in and pay SSP, holidays accruing during that period. If it's Occupational Health and you're having to bring in another person, you're paying double. And if you're in an industry where you're using agency staff, it is so expensive when it comes to agency staff, what employers are having to pay.

There is an obligation to keep in contact with the employee, but it works both ways. The employee also has to keep in contact with you as the employer.

Where you're hitting that stonewall, I think it is right to say, "Look, there is an obligation on you to keep in contact with me. I need to know what's going on. I need to be able to forecast. I need to know how long the absence is going to last. I don't need to be on the phone to you every day of the week, but maybe a check-in call".

If you've got a sick line in for three months, maybe a check-in call every two weeks is the way to deal with it. And that's something that we're going to have to do.

If they don't want to have a Teams call, is it a matter then that we can arrange to meet? We could meet at a mutual location. I don't have to come to your house, you don't have to come into the business, but we could meet for a coffee and a catch-up.

There's a welfare issue to this as much as there is anything else, but it is a difficult circumstance with the employee who goes to ground. But I think it's being clear with the employee. I think where the employee doesn't engage, then you're into looking at the alternatives of Occupational Health and possibly saying, "You're in breach of the contract by not engaging with me, and it might impact upon your occupational sick pay or even your statutory sick pay at some point if we're not satisfied that we're getting that engagement".

Christine: Clearly, I think when someone's hiding from you, best guess would be mental health concerns. Would it be worth saying, "Be free to bring your partner with you for moral support"? Is that worth offering?

From my point of view, I think you need to look as reasonable as possible.Suggest as many different alternatives to the person to show willingness. Then if you do have to go down a disciplinary route or whatever, you've not done it as a knee-jerk.

Seamus: Yeah, absolutely. And that is a good tip in relation to . . . Because sometimes people want to rigidly stick to the workplace employee for formal meetings, but this isn't a formal meeting. It's an informal welfare meeting. And you could say, "Look, if there is support that you need and you want to bring a family member or a relative". I think you need a heads-up as to who that's going to be.

Christine: Yeah. Not your local trade union rep. Probably you might raise an eyebrow.

Seamus: Or my partner who is head of an employment team, or something like that. You want a wee bit of armour and a wee bit of prep happening if it was going to be that.

But I think that you're trying your best to get them to engage and lift the threat off it as well that this isn't a meeting where I'm going to shout at you and be unfair. It's a meeting that, really, we just want an understanding and we want to see if we can help you.

Other things that you could look at as well are reminding them of the outside services that you might have, those third-party services that a lot of employers will have. You might have access to . . . We hear about Inspire, those sorts of organisations. Or even if they have the likes of medical care through the company, that they're making the most of that, or if there's the ability to obtain counselling and things like that as well through the healthcare system.

We have an ongoing difficult matter at the minute where our client has mental health issues and has therapy sessions booked through the medical cover that they have in work. And that is helping, but they didn't know about it because they weren't engaging initially with the business. The business actually came back and said, "Look, here's some assistance that might help you".

It is about if you have the benefit of that, making the employee aware of it as well. And that can sometimes be received very well.

Christine: Brilliant. Thanks, Seamus. We've nearly come to the end. I'll put one more question to you before we wrap up. So, we've got someone who's been off on sick leave due to mental health and stress. They've returned to work, and their manager is reluctant to ask them how they are. HR will have to do the return-to-work interview.

Well, I'm not sure what the question is, but what I'm taking from it is the manager doesn't feel empowered to know what to do. That seems like an issue, to me, of training for the manager, doesn't it?

I think in that instance, it's fine for HR to do a return-to-work interview, but then you really need to address the heart of the problem, that the manager doesn't feel they have the wherewithal to do that, which is an issue, isn't it, Seamus?

Seamus: Yeah, and it's back to that training again. I suppose there's an element of if you have somebody that has been off with mental health issues and if that's recorded on their statement of fitness for work or it's in an Occupational Health report, there's no real reason to shy away from raising that issue with the employee. If it's in black and white and that is the reason for the absence, I don't think that there should be a difficulty in having that discussion with the employee.

A lot of these problems snowball out of control because there's a fear in how to deal with it and a fear of saying the wrong thing. Ultimately, there's a human side to all of this as well. And I think rather than maybe just asking blunt questions, if you give an explanation as to why the information that you're asking is relevant and why you want to know it, it goes a long way for an employee.

And particularly where an employee also is maybe coming in on a defensive basis, I think you have that initial chat and say, "Look, this isn't confrontational. I'm not interested in having a row or a dispute with you. This is the information that I'm looking, and this is the reason why. So, let's have a chat around that. This will help you. It'll help you come into work, and it'll help you feel better when you come into work so that there isn't anxiety and stress about coming into work. It'll give us a way to move forward and resolve the issue so that maybe we don't have a repeat of this happening again".

There will be circumstances that are significantly difficult and you need to have HR in with you as the manager for that. That's fine as well. And those meetings could be used as a training point also so that the next time it's around, the manager would be maybe confident enough to deal with it themselves.

Christine: I'm actually scanning down the questions, Seamus. We've had quite a few in that vein about managers feeling afraid of mental health issues and addressing them in the same that you would a physical health issue. You need to empower your managers and get them some training.

I'll mention it in Legal-Island. Certainly, that's something we should be looking at. If managers don't feel able to deal with that and they're scared and they're shying away, it is going to make more problems than it fixes, really, having an underconfident manager in there afraid of saying the wrong thing.

So yeah, training is really key in empowering your managers, because at the end of the day, it can't all fall on HR to do. They have a very busy job, and if they're managing every single mental health illness, it's going to be very onerous on them, isn't it?

Seamus:  Yeah, absolutely. The problem that is left to fester just will become a bigger problem, and the fear of it turning into a grievance or a tribunal claim, that's ultimately where it will end up if it's not dealt with appropriately at the time. So, it is about getting in and dealing with it. You can deal with these things sensitively but still robustly. There's space and room to do that.

Christine: Brilliant. Thanks very much. Listen, everyone, thanks so much for all your questions. I didn't even get through them all. These really led the webinar today, and it's made our job a lot easier. Thank you for that.

I can see someone's asking, "When is the next Legal-Island training on that mental health stuff?" Watch this space. I will talk internally about that, and we will let you know if we can provide that.

But thank you so much, Seamus. You were brilliant. All the questions were just flying at you, and not one was a problem. Thanks very much for just going with that.

Seamus: No problem.

Christine: Thanks, everybody, for coming along. I hope you survive Storm Amy okay. But in the meantime, please don't forget that you can sign up to the Legal-Island Employment Law Hub. You get a 14-day free trial. There's lots of great stuff on there, plenty of advice on mental health in there. If you do need to look it up, you'll find all the webinars on there. You'll find Seamus Says, where Seamus answers all your questions as well. We've got How Do I Handle It? Lots of great stuff on there, so do give it a go.

You can also join Seamus and I next month in November at Annual Review. It's 13 November. It's in the Crowne Plaza Belfast, but you can also join us online on the day as well. Seamus and I will be there doing an Employment Law at 11 live. It'll be fabulous to see all your faces there.

And we'll let you in on a secret. The early bird offer for Annual Review closed yesterday, but I've talked them into allowing it to stay open over the weekend exclusively for Employment Law at 11 listeners. You can get in there and still avail of the discount until Monday. So please get in there. It would be brilliant to see you all there.

Seamus and I will be taking a break from Employment Law at 11 the webinar next month because we're at Annual Review. But you can listen to us on Spotify, Amazon Music, or Apple Podcasts if you're missing us. You can also contact us via LinkedIn. It's always great to hear from you, so please do connect to us.

But in the meantime, have a lovely weekend, stay warm and dry, and we'll hopefully see you at Annual Review. Thanks very much, Seamus.

Seamus: Bye.

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