Sickness costs the employer money. Are you managing your staff absences?

News & blog » Managing staff sickness

August 11, 2017

Carolyn McFarlan

[PREVIOUS] Payment scams – are you aware?

[NEXT] A to Z of the Hospitality Industry

Sickness costs the employer money; Statutory Sick Pay (SSP) cannot now be reclaimed and, if the employer pays contractual sick pay over and above the standard SSP, then the cost is even greater.

Staff sickness can be a considerable burden on a business and cause management headaches, leading to additional staffing costs and increasing the workload for colleagues. Generally all employers want to support members of staff who are genuinely unwell, however sickness absence must be managed otherwise it can cause problems in the workplace. For example, failing to manage sickness proactively can often lead to the situation being abused or even absences being extended without reason.

As a start point, it is always a good practice to cover sickness in contracts and staff handbooks, whilst making a distinction between long-term absence and short-term frequent absence.

This blog is to provide you with some areas for consideration.

Disability Discrimination

Where the reason for absence relates to a known or advised disability, you need to take particular care in managing the sickness, as this imposes extra duties on the employer and you must not be seen to discriminate.

All employers should be aware that any dismissal of a disabled person is risky, as damages are potentially unlimited and any tribunal will expect careful and considerate treatment of a person with a disability, in accordance with the law.

It is unlawful for an employer to discriminate against a person by treating that person less favourably than they treat, or would treat, others because of disability.

The other consideration is that the definition of disability goes far beyond the traditional perception of disability.

A disabled person is someone who has:

  • ‘a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities’
  • It can cover any normal physically related illness or impairment that has a substantial effect on the person, eg heart conditions, angina, epilepsy, diabetes, chronic back problems etc and the employee will need to provide medical evidence of the condition and its impact on him or her.
  • ‘Disability’ can also cover mental conditions ranging from schizophrenia and bipolar disorder to anxiety disorders; depression can also be regarded as a disability.
  • Learning difficulties such as dyslexia are now recognised as a disability.

Documentation

You should carefully record and monitor absence in relation to each employee. For examples, reasons, length, specific days. One consideration is any pattern to identify untruthful absences or areas to support (eg tiredness). Without such information, it is impossible to take any effective action to tackle absenteeism.

Your contracts and policies should include information such as:

  • The employee is to notify their line manager as early as possible on the first day of absence.
  • If you are absent for one calendar week, on the eighth day of absence you must provide a doctor’s certificate stating the reason for the absence and the period for which the employee is signed off.

Medical Records and information

Accurate medical evidence is vital for every decision made about a persons’ sickness. Again is it good practice to have express provisions in contracts and policies to require employees to see a company doctor or nominated specialist where they need information about the employee’s medical condition.

Where the employer is seeking information from the employee’s GP, they will need to obtain consent under the Access to Medical Reports Act 1998.

The national ‘Fit for Work’ scheme provides a state occupational health scheme for employees who have been absent from work for more than four weeks.

and is discussed in more detail below.

Return-to-work interviews

These are recommended as they are a valuable opportunity for communication between employer and employee. They also act as a disincentive to casual absenteeism, whilst providing a good record of the sickness absence.

These can be informal, but always confidential meetings, where you should look to establish the reason for the absence, how the employee is now, update if related to previous absence, check the employee is fit to return to work and ensure that there is no assistance required from you going forward.

If you do not have absenteeism problems, then you may not conduct such interview for the single days and just consider longer term sickness, however in the hospitality and leisure industries it is a useful tool to manage sickness levels.

Fit notes

Doctor’s certificates are now known as ‘fit notes’ and must be obtained where the employee has been off work for seven consecutive calendar days. The doctor will indicate either that the employee is not fit for work or that they ‘may be fit for some work now’. It may indicate adjustments that could be made to enable the person to return to work – working from home, part-time working etc. These suggestions are not binding, but should be considered as ‘reasonably practicable’.

Sick Pay

You may choose to pay a level of sick pay as part of your staff retention policy, but there is no right to sick pay other than statutory sick pay (SSP), which must be paid by the employer after three days’ absence.

Sick pay is a valuable benefit and is useful in attracting and retaining staff; however, it can lead to abuse and encourage absenteeism.

Sickness and holiday entitlement

An employee on long-term sick leave continues to accumulate their holiday entitlement during the period of sickness. It has also been ruled that employees who are on long-term sick leave are entitled to take holiday, even while still absent and entitled to paid holiday while on sick leave. Of course, this is helpful to an employee only receiving SSP, as the employee is paid the holiday entitlement at their full rate. The current state of UK law, which is governed by EU law in relation to this, is that untaken holiday can be carried over into the new holiday year if the employee does not take their holiday because of sickness.

Managing Long term sickness

Long term sickness is considered where an employee is off sick for a continuous period, (four to six weeks or more) usually for a single cause. We recommend that you have a policy for long term sickness.

Due to the length of absence, the employee will have advised the reason for absence, provided a doctor’s certificate and potentially any additional medical information or they can be required to do so.

Obtain the relevant medical evidence and review the fit notes provided by the employees’ doctor. It would be considered appropriate to request medical information once you become aware that the sickness is likely to be long term.

Where an employer provides sick pay, it is unlikely that they are able to terminate the employment on the basis of incapacity during the period of sickness. However, depending on the ability of the business to cover for the absent employee and how important the post is, the employer may be in a position to consider termination where there is no immediate prospect of the employee returning to their job. If you are consideration termination during long term sickness, then please take good professional advice.

Short term frequent absence

This is where the employee is absent for one or a few days at a time on a number of occasions. This kind of absence is more difficult for an employer to deal with than long term sickness as it is unpredictable and difficult to cover.

It is possible, where absences are single days, that the employer suspects that the employee is not genuinely ill. For example, patterns may be in the employees absences or other factors provide suspicion. However, you should avoid the thought that every sick day is a “duvet day!”

As mentioned previous, this is where you can use a ‘back-to-work’ interview to establish the reason behind the absence, call their bluff and / or obtain any other relevant information.

You should have a trigger point in your management considerations as to when you will start to tackle frequent short-term sickness. This may be an ‘unpublicised’ rule such as a certain number of days absence in a given period or some employers use the Bradford Factor, which is a measure of the frequency of absence.

Initially you may use an informal meeting to explore the reasons for absence and establish any health issues for consideration. Such a meeting will also put a dishonest employee on notice that you are exploring for genuine sickness.

If such absence continues, then a more formal meeting should be undertaken and start a formal exploration of the situation. This may lead to requesting medical evidence if the absences continue.

Again we recommend taking good professional advice at this point.

Sickness during disciplinary process

It is known for employees who are subject to disciplinary proceedings to go sick just before meetings are due to take place. In relation to the proceedings, you have to wait for the employee to return to work and then continue the process. However, you may not want to pay them any contractual sick pay. Where you refer to sick pay in your contract and policies, you may look to insert a clause to the effect that contractual sick pay will not be paid if formal proceedings of this nature have been started.

Sickness during maternity leave

Where a woman is sick during her maternity leave, the employer is not able to take any action in relation to that sickness.

 

This blog is provided for guidance purposes only. It is not a substitute for obtaining specific legal advice. While every care has been taken with the preparation of this blog, we are not HR advisers and neither Arrochar Associates nor its employees accept any responsibility for any loss occasioned by reliance on the contents.

Contact details

  1. E: info@arrochar-associates.co.uk
  2. Tel: 07968 534034