MANAGING LONG-TERM SICKNESS ABSENCE Presented by Ceri Widdett & Marie Walsh

Transcription

1 MANAGING LONG-TERM SICKNESS ABSENCE Presented by Ceri Widdett & Marie Walsh 1. Review 2. Train 3. Record 4. Communicate 5. Plan 6. Monitor 7. Review 1. Review Review your sickness absence and disability policies and make sure that they are: Up-to-date Reviewed regularly Clear Comprehensive The Court of Appeal recently observed in the case of Griffiths v Secretary of State for Work and Pensions [2015] EWCA 1265 that, It is unfortunate that absence policies often use the language of warnings and sanctions which makes them sound disciplinary in nature so avoid such language. 2. Train Train managers to effectively manage sickness absence. Long-term sickness, unpredictable sickness patterns and mental health related sickness require special skill and expertise to manage, not only in terms of monitoring but also in terms of understanding the impact and effects of the illness. Many cases come to court because managers: Get impatient with long-term sickness Underestimate the amount of time that managing long-term sickness can take Have a poor understanding of the impact and effects of long-term illness, particularly mental health related illness Communicate poorly with sick employees Do not believe that the employee is sick enough not to work. This can lead to suggestions that the employee is malingering and/or should pull themselves together. It can also lead to inappropriate comparisons such as, when I pulled my back, I was able to work and comments such as, staff are under pressure due to work building up.

2 3. Record Effective recording of sickness absence is essential if an employer is to: Know who is off due to sickness Identify trends in individual and collective sickness absence Provide early assistance with a view to reducing further absences Using HR software will help with recording all forms of absence. Have a look at Cascade s HR software solution by booking a demonstration here. 4. Communicate Keeping in contact with an employee who is absent through sickness can be a tricky issue. On the one hand, some employees may complain that contact makes them feel under pressure to return to work when they are not fit to do so. On the other hand, other employees may feel isolated and undervalue if there is insufficient contact. A clear policy on communication levels and modes of communication during sickness absence is essential to reduce misunderstanding and conflict. It is also essential to tell the employee when s/he initially goes off sick: What level of communication can be expected during sickness absence How the employer will communicate, i.e. telephone/ /letter Who the point of contact is during sickness absence 5. Plan The following may be relevant when planning a return to work: The use of occupational health and other medical reports Return to work Interviews Reasonable adjustments Occupational health and medical reports These are central to any successful rehabilitation back to work. If recommendations are not followed the employee may issue a stress at work claim against their Page 2

3 employer in the civil courts and/or disability discrimination claim under the Equality Act 2010 in the employment tribunal. The new Fit for Work Scheme offers employers free advice and access to occupational health assessments for employees who have been off sick for 4 weeks or more where there is a realistic likelihood of return to work. The GP or employer refer, not the employee. In the majority of cases there will be a 45- minute assessment between the employee and Fit for Work case manager, which will result in a personalised return to work plan. Return to work interviews Return to work interviews should aim to welcome the employee back into the workplace and get the agreement of the employee to a return to work plan. Any plan should state clearly: The employer contact The aim of the plan The steps involved The timescale A date for review If the employee does not agree then it is important to explore why and address this issue early. It may be that the employee expects adjustments that are not reasonable, e.g. a request to dim lights in a lecture hall due to the impact of full lights on the employee s epilepsy when this would be dangerous for students. Early good communication is essential to explain to the employee why the employer cannot accommodate the requested adjustments if that is the case. Issues that should be explored during the meeting include: How the illness/disability impacts upon the employees personal and work life Any medications and their effects What work adjustments the employees thinks and/or the medical evidence suggests that would help to overcome any disadvantage caused by any disability Why any suggested adjustments would be unreasonable. This is important if the employee is to consent to any remaining adjustments Page 3

4 Reasonable adjustments for a disabled employee Under the Equality Act 2010 an employer is required to make reasonable adjustments when it knows (or reasonably should have know) that the disabled person had a disability and was likely to be put at a substantial disadvantage by a policy, practice or criterion due to that disability. An employer is only required to make adjustments that would prevent the disadvantage caused by the disability. It is therefore important to ask medical experts to address this issue. The employer is only required to take steps that are practicable for it to take the step. The cost of the adjustments and employer s resources are relevant to what would be considered reasonable. The following could be considered reasonable adjustments: Phased return to work Making adjustments to premises Allocating some of the disabled person's duties to another person Transferring the disabled person to fill an existing vacancy Altering hours of working Training Relocation to another site or home working Allowing time off for training, rehabilitation, assessment or treatment Providing a mentor Acquiring or modifying equipment Modifying instructions or reference manuals Modifying procedures for testing or assessment Providing a reader or interpreter Providing supervision or other support Providing help with transport to and from work The Home Office v Collins [2005] EWCA Civ 598 is a good example of case alleging the failure to make reasonable adjustments. The Claimant was an administrative assistant and insulin dependent diabetic. She was employed on a probationary basis in the Integrated Case Working Directorate, in Liverpool, which dealt with applications for asylum. The normal probationary period was twelve months. Page 4

5 In the first six months of her employment she was absent from work for twentyseven days. She was absent for a further four days between April and August 2001, including hospital visits. None of the absences between 12th July 2000 and 11th June 2001 were disability-related. The employer reported concerns about the extent of the Claimant s absences in January 2001 and again in March The Claimant s probationary period was extended for a further six months, a course which was taken by the employer only in exceptional circumstances. The Claimant was told that her sickness record would continue to be monitored. In August 2001 she was signed off work by her GP with stress and depression, which was unrelated to her work but caused by her diabetes. It therefore qualified as a disability. She never returned to work. The case was referred to occupational health In September 2001 and the Claimant was asked to attend an interview with her grade manager. It had been the intention of the manager to extend the probation period by a further three months to allow the Claimant to demonstrate that she could sustain the improvement in her attendance that she had shown in the three months up to August Occupational Health reported in January 2002 that the Claimant was suffering from non work-related anxiety/depression and that it would be a further six to eight weeks at least before the Claimant could return to work. A reduced workload and phased return with an agreed programme to build up hours over two to three months was recommended. In April 2002, the employer sent a Minded to Dismiss letter on the grounds of failed probation due to unsatisfactory attendance to the Claimant. The Claimant Page 5

6 replied saying that she was working towards returning to work and finds it discouraging to be terminated and alleged that, although her current absence was for anxiety/depression, this was as a direct result of her having diabetes. In May 2002 the Claimant attended an interview with the head of the Management Unit who agreed to obtain a further report from occupational health. During August 2002 occupational health reported for a second time. The Claimant had been absent for one year at this stage. Anxiety was still present but with counselling progress was being made. It was stated, that her anxiety relates to a large extent to her diabetes which was poorly controlled for a period but this has improved. The doctor concluded that the Claimant was not capable of her duties due to anxiety. The doctor estimated that the Claimant should be able to return to part-time work in three to six months. The employer terminated the Claimant s contract for unsatisfactory attendance. The Claimant issued a claim for the failure to make reasonable adjustments and unfair dismissal. The Employment Appeal Tribunal held that the dismissal was fair. The employer had not failed to make reasonable adjustments. By September 2002, the Claimant had been absent from work for over a year. In January 2002 a return to work in 6 to 8 weeks was contemplated. By September 2002 the Claimant had still not returned to work The Claimant had a poor attendance record during the first six months of her employment which was not disability related Her probationary period had been extended twice The prognosis by September 2002 was that the Claimant should be able to return, on a part-time basis, in 3 to 6 months. This was not a definite date of return The Claimant was kept informed of the position The Claimant was interviewed Page 6

7 Extending sickness absence trigger points In the case of Griffiths v Secretary of State for Work and Pensions [2015] EWCA 1265, the Court of Appeal held that it was not a reasonable adjustment in that case to extend the sickness absence trigger points. The Claimant, who was employed as an administrative officer by the Secretary of State for Work and Pensions, suffered from post viral fatigue and fibromyalgia. She was dismissed following a 62-day disability-related illness absence. The Claimant raised a grievance, contending that the employer was required to make two reasonable adjustments: That her 62-day disability-related absence be disregarded for the purposes of the attendance management policy and the written warning consequently withdrawn In future the trigger point be extended by 12 days added to the eight already conferred upon all employees The employer rejected her grievance and the Claimant made a claim to the employment tribunal alleging that a failure to make reasonable adjustments under section 20 of the Equality Act The Court of Appeal held that the requirement to attend work did place the Claimant at a substantial disadvantage but the proposed adjustments had not been steps which the employer could reasonably have been expected to take: The absence was not due to a one-off condition Further periods of potentially lengthy absence were likely There was no obvious period by which the trigger point should have been extended The Court of Appeal further held that in cases where it was clear that a disabled employee would be likely to be subject to limited and only occasional absences it might reasonable to extend sickness absence trigger points. Page 7

8 Extending sick pay If a disabled employee is off work sick the employer will not normally be required to pay more than the usual contractual sick pay or (if there is no contractual sick pay) statutory sick pay. However, there may be the exceptional case where the employer had not made reasonable adjustments where enhanced sick pay could be required as a reasonable adjustment. For example, in the case of Nottinghamshire County Council v Meikle [2004] IRLR 703 the Court of Appeal held that when the failure to make reasonable adjustments had resulted in prolonged absences and reduced pay it could not be justified. Mrs. Meikle was a teacher who suffered from deteriorating vision. Her employers failed to make various adjustments that would have helped her cope with her difficulties including: To provide enlarged written materials Non-contact hours She was absent for lengthy periods because of eye-strain and was suspended from work because of these absences. After she had been absent on sick leave for a certain period, she was put on half-pay, in accordance with her employer's sick pay policy. She claimed successfully that that by failing to pay her full pay when on sick leave the employers had failed to make a reasonable adjustment as well as treating her less favourably on a disability-related grounds. The occupational therapist or GP ought to be asked to address any adjustments suggested by the employee and suggest a plan forwards. Access to Work may also be able to help by paying for practical support to a disabled employee. Things such as adaptations to work equipment, fares to work, a support worker or service, training for colleagues and relocation costs can be granted, currently capped at 41,400 per year. The employer may have to share the cost of Page 8

9 (a) special aids and equipment, and (b) adaptations to premises with Access to Work. 6. Monitor/Review The occupational therapist should oversee the implementation of the plan and review the plan at set or necessary stages. Good communication with the employee is important during this stage. Many rehabilitation plans fail because communication is poor. Regular one-to-one reviews are essential to discuss progress and any problems. The frequency of these should be agreed with the employee prior to the return to work. Ill-health dismissals Provided certain criteria are met it is lawful to dismiss an employee for: A single extended absence Intermittent absences Disability-related absence/s The criteria are that: The dismissal must be fair In the case of disability-related absence dismissals there are two additional criteria: Reasonable adjustments were made The dismissal can be justified Was the dismissal fair? Incapability is one of the potentially fair reasons for dismissal under s 98(4) of the Employment Rights Act Under that section capability is assessed by reference to skill, aptitude, health or any other physical or mental quality. The employer has to act within the band of reasonable responses when deciding to dismiss an employee for disability-related absences. This will depend on: Page 9

10 The size of and resources of the employer Whether the employer could have been expected to wait any longer, and if so, how much longer The nature of the illness The nature of the job The needs of the employer The effect on other employees The likely duration of the illness How the illness was caused The effect of sick-pay and permanent health insurance schemes The availability of suitable alternative employment The employer will have to show that (a) it was sufficiently informed of the medical situation, (b) it consulted the employee prior to coming to the decision to dismiss, (c) the dismissal was procedurally fair. It is important that sickness absence policies are followed. If the employer suspects that an employee, who has a fit note signed by his GP, is malingering the employer must accept the sick note unless it obtains other contradictory medical evidence. In one case evidence that an employee was not sick but was travelling to Brighton to participate in a union demonstration was found by the EAT to be sufficient evidence. If the employee refuses medical examination the issue of what is reasonable will be judged on the basis of the facts known to the employer at the time of the dismissal. Where ill health has been caused by the employer s treatment the employer is expected to go the extra mile in finding alternative employment or to allow a longer period of sickness absence than would otherwise be reasonable. Page 10

11 There is no rule that an employer cannot take into account disability related absences when operating its sickness management procedure. The question will be whether the employer was justified. Reasonable Adjustments These are dealt with above. Justification in cases of disability-related discrimination Justification is a possible defence to an employer who dismisses for disability-related absences in circumstances where there are no reasonable adjustments that would assist the employee to return to work. Section 15(1)(b) of the Equality Act 2010 talks about the need to prove that the treatment was, a proportionate means of achieving a legitimate aim. Whether the treatment is 'justifiable' requires an objective balance to be struck between the discriminatory effect of treatment and the reasonable needs of the business. The test is narrower than the range of reasonable responses test that we are familiar with in unfair dismissal claims. Cost alone cannot be used to justify unfavourable treatment but may be used in combination with any other reasons. In the case of Carranza v General Dynamics Information Technology Ltd [2015] IRLR 43 it was held the justification defence would have easily succeeded had it been pleaded. The London Borough of Lambeth employed Mr. Carranza as a customer services advisor. He suffered from stomach adhesions, which was a disability within the meaning of the Equality Act Page 11

12 Lambeth made adjustments including the provision of extra breaks and time of for medical appointments. Despite this Mr. Carranza continued to have very long periods off work. Following informal meetings he was given a written warning. By September 2011, he had been off work for 206 days (41½) weeks in three years. His absences were mainly related to adhesions, but there were also absences for a sprained ankle (six days), a viral illness (nine days), influenza (two days) and influenza (five days). Following a hearing he was given a final written warning to be effective for 24 months. Mr. Carranza had two further periods off sick due to his disability. These periods were relatively short and his employer took no action. Mr. Carranza then sustained a painful shoulder injury at home. He was off work for three months from 30th July 2012 to 9th November Before his return to work occupational health reported that his shoulder injury would last a few months but that the adhesions were a lifelong problem resulting in similar non-attendance as before. Following a further hearing, Mr. Carranza was dismissed. His employer argued that: Mr. Carranza s sickness was absence was extensive His sickness absence had been managed in line with Lambeth's sickness policy His sickness was severely impacting on the business unit His sickness absence had cost the council in excess of 22,000 (this included sick pay, employers' own costs and Occupational Health costs) Reasonable adjustments had been put in place previously to allow for extra breaks, time off for medical appointments and possible adjusted targets There were no alternative duties Mr. Carranza already had a written warning for sickness absence Mr. Carranza brought claims against his employer for disability discrimination and unfair dismissal. He claimed that his employer ought to have discounted his sickness due to his disability as a reasonable adjustment to the policy of requiring consistent attendance. Page 12

13 The Employment Appeal Tribunal rejected Mr. Carranza s claims. If this case had been put forward as a case of discrimination arising from disability (section 15), it would have been doomed to failure. Whilst it might have been established that the dismissal and the underlying written warning were 'unfavourable treatment' the employer would have been able to make out the justification defence. It was legitimate for an employer to aim for consistent attendance at work. The carefully considered final written warning was plainly a proportionate means of achieving that legitimate aim. It was unarguable that dismissal after that further very substantial absence was not a proportionate means of achieving a legitimate aim. Page 13