Everyone gets ill from time to time. Dealing with genuine sickness (both long and short term) requires careful handling.
Follow our top ten tips to avoid mistakes.
1. Treat short term absence differently from long term absence
Short term absence is typically absence that is intermittent, unplanned and for periods of less than four weeks.
You should have a policy which:
- Sets out what the threshold number of absences is before you will take action for both short and long term absence;
- How you will consult with the employee, including holding return to work meetings;
- Whether and under what circumstances you will make adjustments to accommodate the employee's illness (even if they don't have a disability); and
- At what point you will issue warnings and consider dismissal.
2. Manage short term absence promptly
It is helpful to conduct return to work interviews when someone returns to work even if they have only been off a day or two as this will help you to find out if there are underlying health or other issues you need to investigate before taking action.
Genuine absence is not a form of misconduct and, if you wish to take formal action, you should deal with this as a capability issue. For employees with more than 2 years’ continuous service, you must follow a fair policy and this will typically involve meeting with the employee and issuing a series of staged warnings and giving them an opportunity to improve before you consider dismissal. The final written warning should make it clear to the employee that they may be dismissed if their attendance does not improve within a specific time frame.
If you do dismiss, you must give the employee notice (as set out in their contract).
3. Look to see if there are any patterns to the absence
Sometimes, when looking at short-term absence, patterns can emerge which may suggest the employee is feigning illness to avoid attendance at work - for example, the employee might phone in sick on Mondays.
You should ask the employee about these at a return to work interview and, if you are not satisfied with their response and you have a good reason to suspect the employee is malingering, you can treat the issue as a disciplinary matter. However, letting your employee know that you are aware of the pattern may be enough to resolve it.
Our guidance note: Is your employee sick or skiving provides further details.
4. Identify long term absence
You need to manage long term absence differently. Most policies identify long term absence as one that lasts for at least four weeks or is because the employee has an an underlying, recurrent condition which may flare up from time to time.
5. Keep in touch with the employee
In cases of absence which is long-term or if, intermittent but caused by an underlying condition, you should maintain regular contact with the employee, such as carrying out home visits, to keep the employee up to date on any developments at work and keep up to date about how they are feeling and when they expect to return to work.
This is all about balance – contact should be regular and supportive but not intrusive, especially where the employee is suffering from stress.
6. Consider if the employee is disabled
If the employee has a disability additional obligations under the Equality Act 2010 may arise. An individual may be a disabled person if they suffer from “a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.
"Long term" means the impairment has lasted for at least 12 months already; or is likely to last at least 12 months; or to last for the rest of the person's life.
Certain conditions such as multiple sclerosis, cancer, blindness and severe disfigurements are automatically included. For others, it depends on the extent and impact of the impairment without the benefit of any medication that they may be taking for it.
If you are not sure whether your employee is "disabled" or need information to help you understand the employee's condition and prognosis, you may need to obtain a medical report. Don't use the employee's GP. Instead use someone who is not involved the employee's treatment.
You will need the employee's written consent to attending a medical examination for the purposes of preparing a report.
7. Consult the employee
If you've obtained a medical report, meet with the employee to discuss it before taking any action on the basis of its recommendations.
Write to the employee and agree a time to meet to discuss the report and its recommendations. Remember, being unfit for work does not mean that the employee is necessarily unfit to attend a meeting. Consider holding the meeting at the employee’s home or at a neutral venue.
You will need to consider the employee's views and may need to hold more than one meeting.
8. Make reasonable adjustments
Where the employee has a disability, there is a positive duty on employers to make reasonable adjustments to assist the employee to overcome any particular disadvantage that they suffer in the workplace related to their disability such as a phased return to work or temporarily their adjusting duties.
You are under an active duty to consider making adjustments to enable a disabled person to return, or to work or stay in work. An adjustment will only be reasonable if it makes a difference (even if it does not remove all of the difficulties) and it must help the employee get back to work (not ease hardship when off sick).
Even if the employee does not have a disability, it is often worth considering whether adjustments or measures can be taken to assist an earlier return to work.
If your absence management policy includes trigger points for disciplinary action you may need to extend these and allow more absences before you take action. That doesn't mean you have to remove any disabled person from the scope of your policy. However, this is a particularly tricky issue and one where you should take specific advice.
8. Use occupational health advisors
Occupational health advisors can impartially advise on the employee’s specific medical condition and advise on how the employee can return to work. You will be expected to act in accordance with any recommendations the OH makes unless there is clear evidence contradicting them.
You must obtain the employee’s consent before referring him/her to the OH advisor.
10. Keep proper records
Keeps accurate records of all steps you take in a capability or disciplinary procedure including file notes of all telephone conversations, letters and action plans. You will need to provide evidence to demonstrate you acted reasonably.
Information about an employee’s health is a special category personal data under the Data Protection Act and you will need to rely on one of the conditions in the General Data Protection Regulation to lawfully process it.
More information about GDPR is available here.
Need more information?
Our employment law expert, Alan Lewis can help you manage ill health issues and make sure that you steer the right path if you decide to dismiss.
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