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How to deal with an employee with a poor sickness absence record Author: Tina Elliott Summary When dealing with an employee with a poor sickness absence record aim to reach a position where the employee is able to return to his or her duties. Be aware that dismissal for ill health may be a potentially fair reason for dismissal, but take into account the protection given by the Equality Act 2010, as well as the need to follow fair procedures. Be aware that return to work interviews may be helpful when dealing with persistent shortterm absences. Where there are persistent short-term absences but no underlying medical condition, consider moving towards dismissal based on poor attendance. Where the employee is on long-term sickness absence or has intermittent short-term absences due to an underlying medical position, obtain a medical report. Where the absence is prolonged, ensure that a fresh medical report is obtained so that decisions are taken in light of up-to-date information. Keep in touch with an employee who is off sick on a long-term basis. Schedule sickness review meetings to discuss the content of medical reports, and progress and prospects for a return to work. Ensure that any warning that continued sickness absence may result in dismissal is given in a sensitive fashion. Consider ill health retirement and/or permanent health insurance where appropriate. Be aware of the benefits of having a sickness absence policy in place. Introduction An employee may have a poor sickness absence record because of a series of intermittent short-term absences or a period of prolonged and continuous sickness absence. Short-term intermittent absences can be broken down into two categories: first where the employee is absent for a variety of different conditions and second where the employee is absent due to a single underlying condition. The management approach may be slightly different depending on which category is under consideration. The aim when dealing with an employee with a poor sickness absence record is for the employer to try to reach a position where the employee recovers and is able to return to his or her duties. If the employee is unable to return to his or her original job, the employer should consider whether or not the employee can be moved to alternative employment, and where the employee is disabled the employer must consider the duty to make reasonable adjustments. In some cases, it may be necessary for the employer to move towards termination of employment, although this should be regarded as a last resort. Legal considerations Capability Dismissal for ill health falls within one of the potentially fair reasons for dismissal, namely capability, under s.98(2)(a) of the Employment Rights Act 1996. When the employee is not disabled (as referred to below) before dismissing the employer should as a minimum: consult with the employee; investigate the medical position; and consider alternative employment. XpertHR How to deal with an employee with a poor sickness absence record 2
Disability discrimination Under s.6 of the Equality Act 2010, a person has a disability if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Under para.2 of sch.1 to the Act, an impairment is regarded as long term if it has lasted at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected. The adverse effect must be on the person's ability to carry out normal day-to-day activities rather than the duties of his or her job. In general, day-to-day activities are the activities carried out by most people on a daily or frequent and fairly regular basis, such as getting dressed, doing light housework, reading or using public transport. It should also be noted that, when considering whether or not a person is disabled, the condition should be regarded as it would be without the effects of medication or treatment. Put in simple terms, if an employee has a hearing impairment, the condition should be regarded as it would be if the employee were not wearing a hearing aid. A mental impairment should be regarded as it would be without the effects of any medication treating it. Once a person satisfies the definition of disabled, the employer is under a duty to make reasonable adjustments. Where a provision, criterion or practice, or a physical feature of premises, puts a disabled person at a substantial disadvantage, the employer must take reasonable steps to avoid the disadvantage. The employer is also required to take reasonable steps to provide any auxiliary aid that would avoid the disabled employee being put at a substantial disadvantage. Examples of the steps that an employer may have to take to comply with the duty to make reasonable adjustments include: adjustments to premises; allocating some of the disabled person's duties to another person; transferring the employee to fill an existing vacancy; altering hours of working or training; assigning the disabled person to a different place of work or training; allowing the disabled person to be absent during working hours for rehabilitation, assessment or treatment; giving or arranging for training or mentoring; acquiring or modifying equipment; modifying instructions or reference manuals; modifying procedures for testing or assessment; providing a reader or interpreter; and providing supervision or other support. Section 15 of the Equality Act 2010 introduces a new concept of discrimination arising from disability. An employer will discriminate against a disabled employee if, because of something arising from his or her disability, it treats him or her unfavourably, and cannot show that the treatment is justified in the circumstances. This could cover unfavourable treatment of a disabled employee because of sickness absence arising from his or her disability. It is unlikely that an employer could justify any such unfavourable treatment if it has not already considered and put in place any reasonable adjustments. XpertHR How to deal with an employee with a poor sickness absence record 3
Persistent short-term absences Where the employee is developing a sickness absence record that shows persistent short-term absences, it will be necessary for the employer to consult with the employee to find out the reason for the sickness absences. The employer should ask if there is any underlying condition giving rise to the absences. The employee may have a condition that is manageable for some of the time but leads to the absences. The employee's GP may use a statement of fitness for work ("fit note") to give advice to the employer on adjustments that could be made to the employee's duties, hours or workplace, which could prevent further sickness absence. If advice on a fit note is not sufficient, or no such advice is given, this sort of situation should be investigated with a medical report to find out what the prospects for recovery are, whether or not the employee would be assisted by alterations in his or her work or working patterns, and whether or not the condition qualifies as a disability so that the more stringent duty to make reasonable adjustments applies. Where there is no underlying condition and the absences are persistent the employer may reach a point where it is possible to say enough is enough. Where there is an unacceptable level of intermittent absence, the employer should review this with the employee and give him or her an opportunity to comment on the sickness record and an opportunity to improve attendance. The employer should warn the employee that a failure to improve attendance may lead to dismissal. The return-to-work interview can be a useful management tool in dealing with persistent short-term absences. If, on each return from sickness absence, the employee is asked to attend a return-to-work meeting to discuss the reason for the sickness absence, whether or not the doctor was visited and any other comments, it may act as a deterrent to the taking of unnecessary sick leave. Provided that the employee has had a chance to make representations, has been given an opportunity to improve and has been given warnings of dismissal, the employer will be in a good position to dismiss fairly. Although each case will depend on its own facts, it is suggested that a first, second and final warning should be given. However, the employer may have a sickness absence policy that provides for the level of warning to be given and, if so, the policy must be followed. XpertHR How to deal with an employee with a poor sickness absence record 4
Key issues in dealing with sickness absence management There are certain issues that will be key to dealing with an employee with a poor sickness absence record, where the absence is long term or there are intermittent short-term absences relating to an underlying medical condition. Medical investigation It is essential that the employer conducts an investigation of the employee's medical position. This should ask for a diagnosis of the condition, the prospects for recovery and return to work and what, if any, adjustments could be made to enable the employee to return to work. The report may be requested from the employee's GP, subject to the employee providing written consent to this. It will assist the doctor to see a copy of the employee's job description or to have an outline of the duties of the job if no formal job description exists. Larger employers may routinely use an occupational health service. It is often helpful for employers to make use of such a service as the employee can be seen by an independent physician with knowledge of occupational health issues. The medical report, whether it is from the employee's own GP or from an occupational health physician, may indicate that a specialist report should be obtained in order to gain more insight into the condition and prospects for recovery. If so, the specialist report should be pursued. An occupational health doctor will often be able to make a referral but if the employee is already under the care of a consultant it may be preferable for the employer to seek a report from the treating physician, who will be more familiar with the employee's condition. Where the employee has been off sick for a considerable period, it is advisable for the employer to seek an updated medical report. Decisions on an employee's future employment prospects should not be made where the medical evidence is out of date. In some cases the employee may refuse to give consent to the employer to obtain a medical report. In such cases the employer will be entitled to make decisions based on the limited information that is to hand. However, the employer should explain this to the employee and should also explain that it may be to the employee's detriment if the employer is unable to make a decision based on an informed medical opinion. It would be wise for the employer to confirm this in writing and to give the employee a further opportunity to consider giving consent. In some cases the employee may be under a contractual obligation to attend an occupational health assessment if reasonably required by the employer. This may be contained in a sickness absence policy that forms part of the employee's contract of employment. While the employer cannot force the employee to undergo a medical examination, it may be a disciplinary matter if the employee unreasonably refuses to attend when the contract requires this. XpertHR How to deal with an employee with a poor sickness absence record 5
Consultation with the employee Throughout sickness absence, the employer should maintain a level of contact with the employee. This should have the dual purpose of expressing concern for the employee's health and ascertaining the progress of the recovery and likely timescale for return to work. It is unwise for the employer to allow sickness absences to drag on without contact or investigation into the position. Unless the employee requests otherwise (and this may be the case, for example, where the illness is related to stress at work) contact may be made by telephone. The employer should also schedule sickness review meetings at reasonable intervals. There is no statutory definition of a "long-term" illness but many employers trigger long-term sickness review procedures once an employee has been off sick for four weeks. Employers should conduct sickness review meetings to discuss the content of any medical reports, or fit notes containing advice on enabling a return to work, that have been received, to discuss prospects for recovery and to discuss the possibility of return on light duties or with reasonable adjustments. This should include consideration of redeployment into a different role, possibly a more junior one, if this falls within the employee's capabilities. If there appears to be no prospect of recovery and where there are no reasonable adjustments that can be made (such as in the case of an employee with a degenerative condition), the employer may have no alternative but to consider termination of employment. Although warnings may to some extent seem inappropriate in cases of serious illness, the employee should nevertheless be informed that the employer is considering termination of employment. Again, each case will depend on its own facts but it is suggested that a minimum of three review meetings should take place before the point of dismissal is reached. Employers should comply with any requirements in their company sickness absence procedure. Ill health retirement and permanent health insurance Where the employer has an occupational pension scheme, the options for ill health retirement should be considered. Where the employer provides permanent health insurance cover, this should be pursued once the employee reaches the qualifying length of sickness absence. Sickness absence policies Many employers have a sickness absence policy covering issues such as sickness absence reporting procedures, sick pay entitlement and the review meetings that should take place to consider the employee's return-to-work prospects. It is helpful to both employer and employee to have a policy that outlines the steps that the employer will take when a poor sickness absence record develops. Reed Business Information XpertHR How to deal with an employee with a poor sickness absence record 6