Attendance Managementby Kate Russell
- How should an employer treat short-term absence?
- How should an employer manage long-term sickness absence?
- Can an employer dismiss an employee because of long term sickness absence?
- Is an employer required to seek consent from employees in order to process data relating to sickness absence?
- How often should you keep in contact with a sick employee?
1. How should an employer treat short-term absence?
Where the absence consists of lateness or short but persistent and apparently unconnected absences then, after suitable investigation, disciplinary action may be appropriate.
The key steps in managing short-term absence are listed below.
- Investigate the level and reasons for absence – consider the use of return-to-work interviews with line management and completion of self-certification forms, even for one day of absence.
- Authorise reasonable absences to cover medical appointments, including ante-natal care. All pregnant employees, regardless of service, are entitled to reasonable, paid time off for ante-natal care.
- Allow for authorised absence, whenever appropriate: for example, to cover specific religious observances.
- Consider requesting a medical report to establish if there is any underlying medical condition to support the level of absence; there may be a hidden condition and links to disability discrimination which may not be immediately apparent.
- If there are no good medical reasons for the absences, the employee should be counselled and told what improvement is expected and warned what the consequences will be if none is seen.
- Disciplinary action in accordance with the organisation’s procedure may be appropriate, but always treat each case on its merits. For example, if the absences were due to domestic problems now resolved, it is unlikely that the level of absence will continue, so is it appropriate to discipline?
- If there are medical reasons for the absence, consider whether the employee has a disability and establish what reasonable adjustments you can make. For example, does the absence relate to hospital appointments or treatment required? If this is the case, an employer is required to make reasonable adjustments, including allowing time off for treatment.
- If the employee has a recognised illness or medical condition that is not a disability, but his absence rate is unacceptably high, it may be possible to dismiss fairly for some other substantial reason after following due process. The employee’s length of service and the availability of suitable alternative employment are relevant factors to consider before reaching a decision.
2. How should an employer manage long-term sickness absence?
Managing long-term sickness absence has the potential to result in claims for unfair dismissal, disability discrimination, breach of contract or a payment to settle such claims. Long-term absence is nearly always the result of physical or mental ill health. The issues to be considered include:
- Just how much damage is being caused by this absence?
- For how long will the absence continue?
- What is the prognosis of the employee’s general practitioner, or the organisation’s doctor?
- Will there be a full recovery or would a return to the same work be imprudent?
- Is alternative work available, with re-training if necessary?
- How long has the employee been working for the organisation?
- Have all possibilities been discussed with the employee and their representative?
3. Can an employer dismiss an employee because of long term sickness absence?
If the time eventually comes when all procedures have been exhausted, all avenues explored and the job can no longer be kept open, the employee should be fully consulted and informed about possible dismissal. In reaching a decision to dismiss, the organisation’s procedures must be followed and employers must ensure that these procedures are fair and in accordance with ACAS guidance. If an employer chooses not to follow such procedures, then he must budget to include compensation to the employee, should the latter choose to bring a claim.
Dismissal by reason of capability (including medical incapability) is one of the potentially fair reasons for dismissal in accordance with section 98 of the Employment Rights Act 1996. However, any dismissal for this reason must be handled fairly as well.
If, however, the absences are unauthorised and there is no medical condition, the reason for dismissal is more likely to be conduct.
In all cases, it is necessary to follow a fair procedure. Failure by an employer to identify the correct reason for dismissal may contribute to a finding of unfair dismissal.
Having identified the reason for dismissal, a tribunal will then consider if the employer followed the appropriate procedures. It is also important that the employer acts fairly in treating the illness as the reason for dismissal. The action taken must always be within the band of reasonable responses. Factors a tribunal may consider relevant are as follows:
- The nature and length of any illness or disability
- Past service and record
- Any demonstrable improvement in the attendance record
- The effect of continued absence on colleagues and the effect of the absence on the employer’s services: can cover be easily arranged? Tribunals must consider the size and administrative resources of the business when assessing whether the actions were reasonable.
- Whether there were any offers of alternative employment. This perhaps has more relevance in relation to long-term sick employees, but it will also be relevant in the context of an employee who may have a disability. The Equality Act 2010 requires an employer to make reasonable adjustments and this can mean looking at alternative employment.
4. Is an employer able to process data relating to sickness absence?
Data relating to the reasons for sickness absence is sensitive personal data under the Data Protection Act 2018. Details of sickness absence should be recorded separately from sickness records.
Under the GDPR, consent will rarely be an acceptable basis for processing sensitive personal data. Employers should only collect information relating to the health of individual employees if the collection is necessary to enable compliance with the employers legal obligations: for example, to prevent breaching the health and safety regulations and/or anti-discrimination rules.
To collect or use health information employers must first show a GDPR legal basis. Examples would be:
- Legal obligations e.g. ensuring a fair dismissal or paying SSP;
- Contract compliance e.g. provision of contractual pay and benefits; or
- Legitimate interest provided this is not overridden by the rights and freedoms of employees and candidates as data subjects
5. How often should you keep in contact with a sick employee?
An employer should stay in touch with an employee on a regular basis. Make sure your conversation with the absent employee is clearly focused on his well-being and return to work. Try to focus as much on what he can do as well as things he may need help with.
- Traumatic injury or sudden illness
Extend your sympathies and use discretion until the longer prognosis is known.
- Planned treatment
Employees may welcome hospital visits, but try to check with relatives first.
If you are notified that an employee is suffering from a stress-related illness, make contact within a week. It is, however, unlikely he will be ready to discuss returning at this stage. Use discretion until the longer-term prognosis is known.