An employer's guide to attendance management

Introduction — the importance of managing attendance

Tackling sickness absence proactively and in a timely fashion is a key imperative for all employers.

Employers have a responsibility for helping those absent through injury or illness to return as healthy, productive and supported members of the workforce.

At the same time, employees need to be educated about their responsibility to their employer and about the effect of their absence on the employer’s business. Experience suggests that many individuals do not truly understand how important and valued they are as a part of the workforce; nor do they understand the importance of them being at work — both for them, and for their employer.

Managing attendance is a challenge which involves a balancing act between the needs of the employee and those of the business. To complicate matters, there are often non-health-related contributory factors involved, such as low morale as a result of workplace or domestic problems.

It is important that managers and employees work together to address the issues, both medical and non-medical, which will help people return to work and remain at work. Aside from the benefits for employees, managing attendance effectively saves the employer huge sums of money, helps improve employee morale, and enables the employer to compete more effectively in the marketplace; all of which helps to secure the long-term future of the employer’s business.

Reducing sickness absence

There are a variety of tools which managers can adopt to reduce sickness absence, as outlined below.

The contract of employment and sickness absence policies

The starting point should be the contract of employment and any relevant company absence policies and procedures. Employees should be provided with copies of, or be given access to, all relevant policies and procedures at the start of their employment. A copy of our model Attendance Management Procedure is found at MODEL ATTENDANCE MANAGEMENT PROCEDURE.

Furthermore, management must regularly ensure that employees understand both the standards of attendance that are required and why good attendance is necessary.

Management responsibilities

Front line managers have a vital role in managing attendance because of their day-to-day observation and knowledge of their team which enables them to offer appropriate support at an early stage. Does someone seem too ‘out of sorts’? Are there reports of health or domestic problems on the office ‘grape vine’, etc.?

There are, in addition, a number of more formal practices that should be adopted by managers.

Ensure that employees properly report sickness absences

Employees must adhere to the rules about reporting in when absent due to sickness or injury. It is good absence management that employees, and not someone on their behalf, call their manager, by a prescribed minimum period before their contractual start time. This in itself can discourage absenteeism. If the employee is only able to leave a message, then they must leave contact details to enable the manager to return the call. Only in exceptional circumstances, for example, complete incapacity would it be appropriate for a friend or relative to make the call.

Whilst recognising the need for sensitivity, the manager should ascertain, and record in writing, the following information:

• the reason for the absence;
• the expected duration of the absence / return to work date;
• whether the employee is seeking medical advice; and
• whether there are urgent work matters which need to be covered.

Also, any unusual circumstances about the phone call should be noted such as background noise which sounds like a public place, if the call is late or directed to the wrong person.

The employee should be required to notify the manager, as soon as possible, if there is any change to this initial information, e.g. if the employee anticipates a later return-to-work date.

Short-term absences from work should be recorded on a self-certification form which can be provided at a return-to-work interview (and which will amount to useful evidence in the event of doubtful absences).

Management responsibilities

Accurately recording sickness absences

It is surprising how many employers fail to maintain accurate sick absence records. Without these, any attempt to reduce sickness absence will be undermined. Managers therefore need to ensure that they have accurately captured all forms of absence and the reasons for them (bearing in mind possible restrictions to holding sensitive personnel data under the General Data Protection Regulation — GDPR).

Keep in touch with absent employees

Many organisations require employees to call in every day during the first week. For absences longer than a week the manager and employee should agree a protocol for keeping in touch e.g. a telephone call to the line manager once or twice per week as a minimum. For those absent on a long-term basis, for example, following surgery, a schedule of contact may be agreed outside of the normal rules.

Regular contact is important in keeping track of the absence and will again be a barrier to an employee extending their absence unnecessarily. This should not be considered as ‘harassment’ on the part of the employer, but should rather be portrayed and viewed as the actions of a concerned employer, who cares about the wellbeing of its employees. For that reason, it is sensible to include in your absence management procedure a specific note that the organisation will maintain regular contact with the employee whilst they are absent.

Return to work interviews

Once the employee has returned to work, a return-to-work interview should be conducted by their line manager or supervisor as soon as possible. Any undue delay will send a signal that neither the sickness absence, nor the employee’s return to work, is seen as important. These meetings are one of the most important and successful tools in managing attendance. They are vital for a manager in building up trust with an employee, so that the employee can discuss any underlying issues that may be contributing to the sickness absence. The tone of the meeting should be sympathetic, and the questions should not indicate any doubt regarding the authenticity of the illness. The purpose of the return to work interview is for the manager to:

• make the employee aware that his/her absence has been noted and that their return to work is valued;
• establish the reason(s) for the absence (which may not be those originally reported);
• determine whether there may be a common thread (such as an underling illness) between intermittent absences;
• demonstrate that the manager is concerned to ensure that the employee is recovered and fit for work;
• determine whether Occupational Health advice is required; and
• to consider whether there are any work place adjustments that should be made to help the employee maintain good and safe attendance.

Managers should prepare carefully for these meetings and should set aside sufficient time for them (see RETURN TO WORK CHECKLIST). The manager should make a written note of the meeting (see RETURN TO WORK FORM) which should be a factual record of the conversation, rather than including any opinion, etc.

Occupational health role and rehabilitation

The services of an Occupational Health (OH) expert can be vital in the appropriate management of sickness absence. They can provide proactive case management, regular medical reports, and assist with an employee’s return to work by both recommending a bespoke rehabilitation programme and supporting the employee during this period.

Whilst reports from an employee’s GP frequently give a useful insight into the nature and likely duration of the relevant medical condition, they often have little knowledge of the specific employment context (or else only have the employee’s perspective). Understandably also, a GP has the patient’s interests at heart, and has no need to balance this with the employer’s requirement for attendance. However a good OH expert will understand the need for this balance. The GP “Fit Note” scheme will help facilitate the rehabilitation process — full details about this scheme are available in our GUIDANCE ON FIT NOTES.

Many people who are on a long-term sick leave feel that they cannot return until they feel 100% fit; yet, once employees have been off work for more than six months, the chances of them returning to work drop below 50%. Whilst employees should never be pressured into returning before they are safely able to do so, a partial or ‘phased’ return to work, on modified hours and/or duties, is often possible before they achieve full fitness. What’s more, experience demonstrates that an early return to work frequently facilitates the recovery process, reducing the anxiety an employee may have about returning to work. With the guidance of an OH expert, who has been fully briefed as to the employee’s job and illness, a schedule can be drawn up and agreed with between both parties.

Step-by-step guide to managing frequent short term sickness absence

Introduction

In order to manage an employee with an unacceptable level of intermittent, short term sickness absences, an employer must undertake a fair review of the employee’s attendance record and provide an appropriate series of “warnings” that the business cannot tolerate persistent absences and that, ultimately, there may be no choice but to dismiss the employee. It is considered good practice to manage frequent sickness absence separately from the disciplinary procedure, given that frequent absence is a capability, not conduct, issue. For this reason, “warnings” in attendance or absence procedures are best referred to as cautions or notices, or something similar.

At any meeting which may result in such a “warning” being given, the employee should be offered the opportunity to be accompanied by a trade union official or fellow worker. Set out below are the suggested steps that should be followed in dealing with unacceptable levels of short-term sickness absence.

Trigger Levels (including the Bradford Factor System)

An important pre-requisite to tackling poor attendance is to have a consistent mechanism for identifying which employees are potential causes for concern. Many methods can be used to identify absences which are “abnormal”. Some common methods are:

• A percentage of absence (used by calculating the amount of time lost in relation to the potential time that could have been worked in any one period). This is usually calculated on a 12-monthly rolling basis and is a measure that many can relate to and understand. For managers, it is easy to benchmark a percentage absence figure against an industry norm or, more pertinently, against a comparative group of employees. Many companies also use percentage levels to communicate absence to the work force and to establish target figures as key performance indicators. 
• Number of days absent in a given period which is usually a 12-month rolling period. This has the benefit of being very easy to calculate and to make comparisons with. However, it is important to ensure that the days counted do not include days which are authorised such as time off for dependents, antenatal appointments, permitted leave under domestic procedures etc. In addition to this, the number of days alone can be misleading as one occasion of absence could result in a large number of days when the employee is absent for surgery. Equally a small number of days can seem less problematic but can be sporadic and potentially more disruptive to the business.
• Number of occasions or spells of absence in a given period, again a 12-month rolling period is commonly used. This is more indicative of whether the pattern of absence is a single one-off instance or sporadic short-term absence. However, managers should still look out for any connection between the occasions of absence to see if there are any recurring issues or links between them.
• A combination of occasions and days in a given period, again usually 12 months. Looking at both figures will, again, give a better picture of the absence and, in particular, looking at patterns of occurrence may be significant. For example, occasions occurring immediately before or after holidays, occurrences during school holidays or regular sporting fixtures, occurrences before or after the weekend may well indicate patterns of absence which need investigating.
• The Bradford Factor is increasingly used by businesses to highlight frequent short-term absence as it uses a formula based on the number of days and the number of occasions in a given period. The formula is as follows:
  
  No of Days x No of Occasions (squared)
  (For example 7 days x 4 occasions x 4 occasions = 112 points
  OR 14 days x 1 occasion x 1 occasion = 14 points)

The example shows that this figure rises dramatically if the employee has a high number of occasions and will be relatively low for single one-off absences, even if those absences are quite lengthy. As with other figures, great care needs to be taken to ensure that the data used is the right data. Often companies, as with percentages, will calculate a business or employee group average, to use as a benchmark against which single absences can be measured.

Communicating the Bradford Factor to the work force is vital as they will often not be familiar with it or understand how it is calculated or used.

Setting trigger points

Whichever trigger method is used, the trigger acts as a prompt to managers that an employee’s absence record should be reviewed. Trigger points can be set for each stage of the procedure to build consistency into the process. The danger is that employees may be tempted to work up to a level of absence which is just short of a particular trigger level. As figures are calculated on a rolling monthly basis, then employees again can wait until their level of absence decreases before taking another spell of absence. The important caveat to using trigger points is that they only trigger or prompt a manager to start the ball rolling on reviewing absence and are not a substitute for the proper investigation of an employee’s record. They should never be used to issue automatic improvement notices.

When calculating trigger points employers are advised to record pregnancy related absences separately or to discount such absences in any formal review proceedings as including them could lead to claims of discrimination.

One way of “triggering” action is to note when an employee’s record rises to an above average position compared to other employees in their group. This may be more difficult to calculate, but will change as absence rates fall, to reflect any improvements made.

Step 1: Review the employee’s attendance record

If a trigger point has been reached or an absence pattern becomes a cause for concern, the manager should check that the employee’s attendance record is accurate and that (where applicable) any earlier stages of the company’s attendance procedure have been correctly implemented. The reasons given for the previous absences should also be reviewed to determine whether there is any discernible pattern or any potential underlying causes (although the manager should not question the genuineness of the absences unless there is good evidence upon which to do so). The three main issues for consideration at this stage are:

• Is there or could there be an underlying medical problem which is causing the persistent intermittent absence? (For example, an employee may be suffering from HIV but the illness may be presenting various symptoms which on first glance appear unrelated and minor — ‘flu, stomach complaints, rashes, etc.’);
• Is medical evidence required? Case law has recognised that in frequent short term ill-health cases, medical reports may be of little assistance: by the time the employee sees a doctor, the symptoms may have disappeared. Medical reports are important to understand if illnesses may be related because of an underlying medical condition, or if it is not thought that “illnesses” are genuine and the employer is looking at disciplinary action. An employer must be able to show that he investigated the reasons for the absences and was sufficiently informed of the medical position;
  
  If there is an underlying medical condition, it may be more appropriate to adopt the approach for managing long term sickness.

Step 2: Informal counselling

It is always good practice to identify potential problems as they arise, as early intervention often “nips the problem in the bud”. A manager should discuss the employee’s health and attendance record with him/her before any formal stage of the company attendance procedure is triggered, e.g. during return-to-work interviews or where it is apparent that an employee is struggling to cope with his/her duties, etc. As well as listening to the employee’s explanation for the sickness absences and any other comments the employees makes, the manager should always be on the lookout for any signs of underlying issues, such as:

• an underlying medical condition;
• any suggestion of harassment or bullying at work;
• stressful or demotivating / boring work;
• drug or alcohol problems;
• domestic or family problems; and
• any suggestion of malingering.

Even though informal, any meetings or discussions with the employee should be fully documented (and such notes kept confidential, as explained above).

Counselling should be in a light tone and not appear to be disciplinary. For many employees this will be sufficient to put them back on track. However, if matters do not improve then they should be advised that the formal procedure will commence. Employees entering a formal procedure should not be taken by surprise that their attendance is being reviewed.

Managers and supervisors dealing with counselling and return-to-work interviews should be trained in the skills they need to carry out these meetings confidently and in the appropriate manner.

Step 3: Attendance Improvement Notices

As soon as an employee has reached a “trigger point” under an organisation’s attendance procedure, then having reviewed any previous notices to ensure that they were correctly given, the manager should arrange an attendance procedure meeting promptly.

In preparation, the manager should adopt the same good practice as would apply when preparing for and holding a disciplinary meeting. For example, the employee should:

• be given advance written notice of the meeting;
• be provided with a copy of his/her previous attendance record;
• be provided with a copy of other relevant documents, for example, medical reports, risk assessments etc;
• be allowed to be accompanied by a colleague or trade union representative and have the opportunity to state his/her case; and
• receive a written record of the meeting and its outcome, which sets out what will happen if there is no improvement and (where applicable) which informs him/her of the right to appeal, etc.

There is distinction between disciplinary warnings and warnings that are issued for genuine albeit disruptive short term ill-health absences where, the employee should be treated with “sympathy, understanding and compassion”. To make this distinction clear, it is more appropriate to use word such as 'caution' or 'notice' as opposed to 'warning'. These should be sympathetically worded and should make clear:

• that the level of absenteeism is unacceptable;
• the effect it is having on the business;
• that the absence record needs to improve and how and in what timescale it needs to improve;
• what the consequences of no improvement will be; and
• the right of appeal (where applicable).

The number of cautions or notices that are issued will depend on your own company procedures but as a minimum you should issue two written notices with the final one advising the employee that a failure to improvement their attendance is likely to lead to termination of their employment.

Step 4: The decision to dismiss

Once the final stage of the attendance procedure has been triggered, the manager should review the previous cautions/notices to ensure that they were correctly given and arrange an attendance review meeting promptly. The good practice principles that apply to the attendance improvement notice meetings similarly apply to the final stage of the procedure, particularly as termination of the contract is being considered.

When deciding whether or not to dismiss, the manager should take into account:

• the nature of the illness or illnesses and the likelihood of some/all recurring;
• the number and length of absences and the periods of good health in between;
• the number of times/reasons why the attendance procedure has been triggered;
• the need to have the employee’s work done / the impact of the absences on other employees and the business;
• consistency of treatment when compared to other employees with similar absence records;
• the employee’s length of service and overall sick absence history (e.g. has there been a sudden decline in an otherwise exemplary period of long service?);
• any mitigating circumstances given or apparent; and
• whether in all the circumstances a reasonable employer could not have been expected to wait any longer.

If a decision is taken to dismiss the employee then he/she must be notified of their right to an appeal. 

 

Common problems with managing short term sickness absence

There are a number of common problem areas which managers need to be aware of when managing short term sickness absence:

1. Managers should always consider whether an employee who, at first sight, appears to have short term, irregular attendance, should in fact be managed as a long-term sickness absence case due to some underling condition.
2. Some company attendance procedures suggest that absences as a result of an accident at work should normally be discounted. If this is the case and a decision is taken to include such absences, then the manager must record their reasons for this.
3. If it is decided to include disability-related sickness absences then the manager should be able to justify this decision (and, ideally, give the disabled employee advance warning before counting such absences). Ideally seek advice on this first and, in all cases, keep a written record of these matters.
4. Adjustments to an employee’s current duties, and/or redeployment to suitable alternative duties, which would help improve attendance should be considered at any stage, whether or not the employee is disabled under the Equality Act 2010. For example, such adjustments should be considered:
   • as a means of avoiding the employee taking sickness absence in the first place (e.g. as soon as it becomes apparent that the employee is struggling at work);
   • as soon as the employee commences a period of sick absence: the emphasis should be on getting the employee back to work as soon as possible;
   • on a regular basis when an employee is on long-term sick leave: managers should avoid adopting an ‘out of sight, out of mind’ mentality and ensure that each absent employee’s case is regularly reviewed.
5. Managers should be on the look out for non-medical reasons for absences, such as:
   • work-related problems, e.g. taking time off due to falling out with colleagues or because the employee feels aggrieved with management over an issue (e.g. as a result of a grievance or disciplinary issue). This can be a complex issue to deal with, as the employee may genuinely feel upset by the situation. The matter should be properly investigated, particularly if there are possible discriminatory issues involved. However, the employee must be made aware that staying at home and ‘stewing’ is not the best strategy. A doctor’s report, which provides an opinion as to whether or not the condition is a medical one, is very useful, as management can make the employee aware that unless there is a medical condition, they will not be regarded as being off sick and may instead be viewed as taking unauthorised absence. In some instances, a company’s reliance on medical advice from occupational health can take precedence over that of a GP but seek help from your HR Rely adviser before taking this step;
   • taking time off because of domestic issues: Management needs to try to win the employee’s trust and encourage the employee to accept assistance which will enable them to address their domestic issues. For example, if the employee is worried about debts then any company welfare services may be able to offer guidance and support; if the employee is experiencing marital problems, then it might be appropriate to grant them a period of special leave. Some employers also offer employees a free confidential telephone counselling service which may also assist employees with various personal problems seek solutions;
   • going sick to avoid disciplinary hearings: If an employee is facing a disciplinary hearing, then taking sickness absence is a reasonably common occurrence. It is important for the manager to promptly seek OH advice (with the employee’s consent) as to the employee’s current state of health and whether (with any necessary adjustments) they are fit enough to undergo the disciplinary process. If the OH advice is that the employee will not be fit to attend a disciplinary hearing within an acceptable timeframe, then it may be fair to invite the employee to send a representative to the hearing and to hold it in their absence. Alternatively, if the absence continues for a long period or if they are not fit to attend hearings at work, the employee could be invited to attend via telephone, or to state their case in writing, in response to a written explanation of the allegations and evidence from the employer. It is important that the employer does not act in an oppressive manner or make it obvious that they suspect the employee’s sickness is not genuine. (This situation is complex and legal advice should always be sought before dismissing an employee in their absence on sick leave) GUIDE TO STRESS ABSENCE DURING DISCIPLINARY HEARINGS;
   • if an employee or their companion cannot attend a final absence review hearing for a reason that was not reasonably foreseeable at the time that the hearing was arranged, then the meeting should be rearranged. If the second meeting falls through for unforeseeable reasons then the manager will need to consider alternative ways of enabling the sick employee’s participation, as described above;
   • alcohol or drugs-related absences: Drink and drugs problems can result in both short-term and long-term absence issues. Where drink or drug dependency is suspected as the underlying cause, then the reason for any subsequent dismissal on the grounds of their dependency may be a capability and not an attendance issue and therefore the long-term ill-health procedure may be most appropriate. Managers should also have regard to any company drug and alcohol policy when deciding how best to proceed. However, if there is no dependency and the employee merely has problems coming to work due to drinking the previous evening, then it will remain an attendance or conduct issue.

Unauthorised absence or employee who has gone AWOL

On occasion, some employees absent themselves from work for a continuing period of time and make no contact whatsoever with the company. Or they may be off sick initially and then their medical certificate runs out without renewal and they fail to attend review hearings. Every effort should be made to try and make contact by writing to their home address, using known telephone numbers and email addresses. However, if no contact is made, the employer may send a letter advising them of the consequence of persistent non-contact which may ultimately lead to disciplinary action for gross misconduct.

Step-by-step guide to managing long term sickness absence

Whilst the management of long-term sick absence has many similarities with the management of short-term sick absence, there are some important differences. Set out below are the suggested steps that should be followed.

Step 1: Establishing the medical position

What is the purpose of getting medical evidence?

When an employee commences a period of potentially long-term sickness absence, then it is essential to establish their medical condition as soon as possible:

• if the employee’s medical condition amounts to a disability under the Equality Act 2010, then there are practical consequences for the employer and you should seek specific advice from your HR Rely adviser;
• until the medical position is established, the absent employee’s work colleagues will have to cover their workload unless temporary cover be obtained. This may lead to uncertainty, impact on their morale and may increase their own stress levels;
• from a health and safety perspective, management need to ascertain whether the illness was caused by the employer and, if so, whether the employee and/or others are at risk.

Whom should we consult?

Where an employer has its own Occupational Health Service (OHS), then the starting point for seeking advice about the employee’s medical position and prognosis should be the OHS. The OHS may be able to provide a file opinion and/or it may be necessary for the employee to attend an OHS consultation. In both cases, the employee’s consent will be required. 

The OHS may wish to contact the employee’s own GP and/or Specialist (again with the individual’s consent) in order that the OHS can thereafter provide the manager with ‘joined up’ medical guidance. Assuming that the employee gives consent, it is likely that a Tribunal will expect the OHS to seek input from the employee’s GP and/or Specialist so that, ultimately, the employer can make a well-informed decision. The GP and/or Specialist may have background knowledge about the employee which will be of relevance to the consideration of their long-term future, but the OH Adviser is likely to have a better understanding of the employer/the workplace and the demands that are placed upon the employee on a daily basis. As with all medical reports, due regard should be had to the relevant impact of the General Data Protection Regulation (GDPR) and the Access to Medical Reports Act 1988 SUMMARY OF RIGHTS UNDER ACCESS TO MEDICAL REPORT ACT 1988 (AMRA).

What should I ask the OHS, GP or specialist?

Whenever a medical practitioner is consulted, the manager must make sure that they are fully briefed as to the purpose of the report and the relevant background facts. (In a Tribunal claim it is not only the medical report but the letter of instruction and supporting documents which may have to be disclosed) It is essential that within the letter of instruction the medical practitioner is given as much information as possible about:

1. the employee’s job;
2. the nature of their work, including the employee’s responsibilities; (Try and be as specific as possible e.g. rather than saying the job involves heavy lifting which is open to interpretation, say the range of weights that the employee is required to lift and the frequency with which they are required to lift such weights)
3. the physical and mental demands of the job;
4. the purpose of the report, i.e. to consider the future of the employee’s employment prospects, the possibility of workplace adjustments to accommodate the employee and to enable a return to work, etc.;
5. the history of absences with the given reasons; and
6. the questions on which an opinion is required, such as:
   • What is/are the underlying cause(s) of the problem?
   • What medical assistance is available to deal with it?
   • How long will any treatment take and what are the prospects of success / the risk of relapse?
   • Are there any workplace adjustments which could be made to overcome or lessen the impact of the medical condition and enable a safe return to work/ regular attendance at work?
   • Are there any particular aspects of the employee’s job which are affected by the condition and any aspects of the job which are unaffected?
   • Is the employee disabled or could potentially be classed as disabled in time?*
   • If disability is a potential issue, the medical practitioner should also be asked to assess whether the employee is disabled or likely to be classed as disabled in the foreseeable future under the Equality Act 2010 and the extent of the employee’s capabilities. Unless you are confident that the practitioner is familiar with the legal definition of disability, the letter will need to explain the definition, including relevant cross-references to the accompanying Guidance and Codes of Practice, and seek the practitioner’s opinion as to whether the employee falls within that definition LETTER - APPLICATION TO EMPLOYEE’S DOCTOR FOR A MEDICAL REPORT (DDA).

What if the employee refuses to consent to the provision of a report?

The employee has the right to decline to undergo a medical examination but, additionally, where the Access to Medical Reports Act applies, also has the specific right to refuse to consent to the preparation of a medical report or to the disclosure of such a report once prepared (where that report is prepared by a medical practitioner who is treating them). Forcing the employee to undergo such an examination may amount to a constructive dismissal. A contractual term which obliges an employee to undergo an examination will be helpful, but an employer cannot insist that the employee be examined even if there is such a contractual term.

If the employee does refuse to cooperate, then the employer must make it clear to the employee that, as a consequence, any decision/actions can only be based upon medical information available to the employer and that decisions regarding the employee’s future employment, including the possibility of dismissal, will have to be made without the benefit of full medical information LETTER TO EMPLOYEE - FAILURE TO ATTEND A MEDICAL.

iii) Where there is a persistent refusal to cooperate, a dismissal may be justified if it can be shown that, in the absence of a medical report, the employee is incapable of performing their duties and it is unreasonable to expect the employer to wait any longer.

What if medical reports conflict?

Where this arises, it may be advisable for the employer to consider obtaining a further report, especially if the opinion relied upon is less favourable to the employee. The employee should also be given the opportunity to counter the employer’s medical evidence with evidence of their own in such circumstances. If the employer relies on one medical report in preference to another, the employer should have a good reason for doing so and must be prepared to defend the decision on reasonable grounds in a tribunal, if necessary.

However, a tribunal may be prepared to accept that it is reasonable for the employer to rely on its own favourable report. For example, in one case, the employee was employed in a lead smelting plant and in a safety critical role. He was diagnosed as suffering from paranoid schizophrenia and, after treatment, was declared fit for work by his medical advisers, although no guarantees against a relapse were able to be given. The company doctor advised that the employee should not return to work because the safety risk, should he have a relapse, was too great. He was accordingly dismissed. The tribunal upheld the fairness of the dismissal on the basis that it was reasonable for the employer to prefer the opinion of a doctor with direct and detailed knowledge of the safety risks and the nature of the employee’s job to the opinion of an independent expert who lacked the same background knowledge. If this type of situation arises in an organisation seek advice from an HR Rely adviser.

Should I share the medical report with the employee?

Save in exceptional circumstances (e.g. on the advice of the OHS), all medical reports should be disclosed to the employee.

Step 2: Consider the medical report / prognosis and undertake a risk assessment (if not already completed):

The manager must be satisfied that the medical report makes sense and that the medical practitioner has answered all the questions. For example:

• Does the manager want any issues to be expanded upon or clarified?
• Is there an unclear diagnosis or is the opinion of a Specialist required?
• Are there outstanding test results?

Tribunals will not be sympathetic to managers who did not understand aspects of the report but did not seek clarification, nor with managers who make hasty dismissal decisions which are based on incomplete expert guidance (e.g. where a further examination by a specialist was appropriate but not undertaken, or where there were potentially significant test results outstanding).

Step 3: Consultation with the employee

It is essential that there is ongoing communication with the employee from the moment the employee commences their sick absence. During the early stages, it may be no more than staying in contact and maintaining a dialogue, and as time moves on, it will involve discussing with the employee their illness and employment prospects.

Maintaining contact is one of the most effective ways to increase return-to-work rates for long-term sick employees. This reflects the fact that, after approximately four weeks off work, employees start to lose their link with the workplace, develop a “sick role” and feel excluded. Whilst some employees cannot genuinely return to work, others can be helped to avoid the “sick role” mantle and return to work more quickly through regular communication and contact and the creation of a bespoke rehabilitation programme (see below).

Consultation with the employee (which should be carried out face-to-face wherever possible) should include:

• consideration of the employee’s opinion on their condition and a discussion about the contents of any medical report. For example, does the employee agree with the report or instead want an opportunity to obtain an independent one of their own?
• a discussion about possible rehabilitation measures, such as a phased return, reasonable adjustments to their current role or redeployment to a suitable alternative role; and
• when an appropriate point in time has been reached, discussion with the employee as to the stage when dismissal may need to be considered.

Only in the most exceptional circumstances will a failure to consult with the employee be justified.

The employee who does not keep in touch

This can be a difficult issue as the reasons for an employee’s failure to stay in contact may vary from the genuine (e.g. an inability to think logically due to severe depression) to ‘game playing’ (e.g. purposefully avoiding contact because the employee has no intention of returning to work despite being capable of doing so).

The employer’s absence policy or staff handbook should refer in detail to sickness absence procedures and, ideally, should make it clear that the employee is required to maintain contact during periods of sickness absence. If the manager has made contact with the employee (and established that the employee is neither in hospital nor so ill that they cannot maintain contact) then the manager should take the opportunity to remind the employee of this requirement.

If the employee does not keep to the agreed arrangements for maintaining contact and if there are no mitigating circumstances, then the employer can write to the employee, referring to the relevant part of the sickness absence procedures, and insist that the employee calls in and updates the manager. Clearly, the frequency of contact required will depend on many factors, such as the nature of the illness, the previous sickness absence record etc. Therefore, an employer should make sure that any reminder to maintain contact is sensitively and appropriately handled, particularly where someone is suffering from any form of mental illness. In the latter case, it is advisable to seek OHS approval before putting any pressure on the employee to maintain contact, so that their medical condition is not unintentionally worsened.

Step 4: Rehabilitation, reasonable adjustments and suitable alternative employment:

Employers who work closely with the relevant medical advisers and the employee to develop a rehabilitation programme enjoy higher (and earlier) return-to-work success rates. Such a rehabilitation programme may include a phased return, lighter duties, changing hours of work, flexible working or redeployment into suitable alternative employment. Aside from the obvious commercial advantages, the proper consideration of rehabilitation duties is essential in avoiding unfair dismissal or disability discrimination claims.

If considering redeployment into suitable alternative work, the employer may have to consider making minor modifications to the job in order to facilitate the return to work (e.g. a change of shifts).

• An important 2005 House of Lords judgment, Archibald v Fife Council, highlighted the need to consider alternative employment for disabled employees. The decision indicates that where an existing employee becomes disabled, the duty for employers to make reasonable adjustments could extend to transferring that employee to another job at a higher grade, even when they may not be the best candidate. Be aware, however, that each case is different and this may not be required in every case. 
  
  This decision confirms that a positive duty to make adjustments is triggered when, as a result of becoming disabled, an employee is unable to perform even the most basic functions and requirements of the job and is therefore at risk of dismissal. The employer has a duty to make such adjustments as are reasonable in all the circumstances of the case.

To date, the view has been that the duty to make reasonable adjustments does not extend to creating a job (although if the employer has sufficient extra work to justify the creation of an additional role, then this might be regarded as reasonable). However, recent case law suggests that Employment Tribunals increasingly expect employers to consider creative solutions; for example, swapping jobs to accommodate disabled employees might constitute a reasonable adjustment in some circumstances. Employers must now consider re-deploying disabled employees into both vacant and filled posts, although they are not under duty to create new posts to accommodate disabled employees. If you are considering swapping jobs, consultation with the non-disabled employee occupying the relevant post will form a necessary part of this process.

Step 5: Deciding whether to dismiss

Although obtaining relevant medical guidance is essential, the ultimate decision to dismiss rests with management. They will need to weigh up whether, for example, medically-required adjustments can be accommodated within the workplace and whether it is safe to allow the employee to return to their old job, regardless of whether they are declared fit to return.

In summary, the following should be considered before deciding whether to dismiss:

• the nature, length and effect of the illness;
• the prospects of recovery and the likely timescale;
• the nature of the employment and the ability within the organisation to cover the absence;
• the employee’s length of service;
• how the illness was caused;
• the effect of the continuing absence on the business;
• whether contractual sick pay has expired and whether Permanent Health Insurance entitlement will be deprived by the dismissal (see below);
• the requirements of the Equality Act 2010 where appropriate; and
• the requirements of Health and Safety legislation (e.g. where the nature of the employee’s illness is such that they would represent an unacceptable risk to the wellbeing of themselves or their colleagues if they returned to work, e.g. a crane operator with severe epilepsy).

If all these matters have been properly considered and the prospect of a return to work remains unlikely in the foreseeable future, the employer may terminate the employee’s contract on the basis of their long-term illness. The same procedures for any dismissal (including the need to act fairly) must be adhered to, including inviting the employee to a meeting with representation, holding a hearing before making any decisions and offering the employee the right of appeal if the outcome is to dismiss. Adjustments may have to be made to arrangements for the meeting to take place LETTER TERMINATING EMPLOYMENT ON ILL HEALTH GROUNDS (LONG TERM ABSENCE).

Other general issues

Fairness, sick pay and Permanent Health Insurance Schemes

Although it is unusual to do so, it is a commonly held misconception that it will be unfair for an employer to dismiss an employee who remains entitled to receive remuneration under the company's sick-pay scheme, and that it will be fair to dismiss the employee once such rights under that scheme have been exhausted. The existence of such a sick-pay scheme is merely one of the factors a tribunal will consider when deciding the fairness of the dismissal. Having a scheme may indicate that the employer had envisaged a certain period of absence and is able to cater for such absences. But a tribunal is not bound to assume that any such implication can be drawn from the existence of such a scheme. Similarly, an employer may be acting unfairly even if it waits until the sick-pay scheme has been exhausted before dismissing the employee. In any event it is good practice to send a letter to the employee prior to the expiry of their sick pay entitlements to advise them of the change in their pay. 

It should be noted that the dismissal of an employee in receipt of a benefit under a permanent health insurance scheme (PHI) may constitute a breach of contract, even if the appropriate notice is given. In the case of Aspden v Webbs Poultry and Meat Group (Holdings) Ltd [1996], the employer operated a scheme whereby employees who were wholly incapacitated by sickness or injury from continuing to work would receive three quarters of their salary until death or retirement, provided that they remained in the company's employment. In these circumstances the judge held that even although the employee's contract expressly provided for dismissal for prolonged incapacity, there was an implied contractual term to the effect that, save where there was gross misconduct justifying summary dismissal, the employer would not terminate the contract whilst the employee was incapacitated for work and was receiving the insurance benefit. Any organisation looking at introducing a PHI scheme would be well-advised to investigate with the provider whether they are able to offer such a benefit without it being conditional on the employee continuing in employment. Alternatively, an organisation may look at an express provision into the contract of employment entitling the employer to terminate the employment even if this results in the loss of PHI.

Ill-health Caused by employer's treatment

Sometimes the ill-health may have been caused by the conduct of the employer. This does not preclude a dismissal from being fair, although a tribunal might expect an employer to demonstrate extra concern before implementing a dismissal (it may, for example, be necessary to “go the extra mile” in finding alternative employment for such an employee). Of course, an added incentive for the employer to retain the employee in such circumstances is that it minimises the risk of a significant personal injury claim.

Early retirement due to ill health

Some employees have the potential right under occupational pension schemes to take early retirement on health grounds and this should be considered. The terms of such entitlement are normally determined by the terms of the pension scheme and normally require a doctor’s recommendation that the employee is permanently incapacitated from any full time employment that they could reasonably be expected to do. There is an implied duty on the employer to act reasonably in exercising any discretion to allow early retirement which includes:

• consulting its medical advisers in relation to the application;
• considering, in the light of this evidence, whether the employee:
  • is unable to undertake any duties due to ill-health;
  • has therefore suffered a substantial loss of earning capacity; and
  • is likely to continue to suffer such loss permanently.

A retirement on ill-health grounds would normally amount to a consensual termination (providing that it is voluntary) of the employment contract. In such circumstances, the employee would not be treated as “dismissed” for unfair dismissal purposes. Employers must be careful to identify the correct reason for the employee’s service coming to an end, given the different procedures and risks which arise. For example, is it a consensual end to the contract (a resignation), a capability-health dismissal or a voluntary retirement? Remember that an enforced retirement will need to be justified (speak to your HR Rely adviser for further information). 

Employee’s undertaking paid work elsewhere whilst on sick leave

If an employee receives sick pay from their main employer but undertakes paid work for another employer during the same period, it is possible that their main employer may have grounds to fairly dismiss the employee for serious misconduct. Yet, it is not safe to assume that this will always be the case; each claim will be determined on its facts and such a dismissal may well be found to be unreasonable. As an alternative, the employer may be able to trade his consent to the employee doing the other work for the employee by accepting a reduction in their pay. However, we recommend that you take specific legal advice for taking this step. 

Avoiding Discrimination

When managing absence, an employer needs to have regard to its obligations and employee’s rights under other areas of legislation and to take care to avoid discriminating against an employee. Consideration needs to be given to the reason for the employee’s absence.

Disability Discrimination

The Equality Act 2010 requires that, prior to dismissing an employee for a disability-related sickness absence, an employer must be able to both justify the dismissal and be sure that there are no reasonable adjustments which would avoid the dismissal (such as modifying the employee’s duties to enable them to attend regularly, or else redeploying the employee to suitable alternative work).

Employers should also familiarise themselves with, and use where appropriate, the Government’s Access to Work scheme as it is something referred to in the Equality Act Guidance. This scheme can help the employee if their health or disability affects the way they do their job and it gives employees and employers advice on and support with extra costs which may arise because of an employee’s needs. Check if you or your employee qualifies for Access to Work by following this link: Access to Work.

Other forms of Discrimination

There are, in addition, other ways in which discrimination may arise in the context of sickness absence:

• sometimes the sickness absence may be due to illness (e.g. stress or depression) resulting from sex/race/disability/etc. harassment which has gone unnoticed or unresolved by line managers and/or the employer;
• the employee’s sickness may be pregnancy or maternity-related, in which case, the employer risks a finding of sex discrimination if dismissing or treating a female employee less favourably by reason of pregnancy or maternity-related sickness absence;
• age discrimination: e.g. where an employer makes unfair/stereotypical judgements about an employee’s age/ability to be successfully rehabilitated (‘you can’t teach an old dog new tricks’).
• absence which results from an employee taking time off to care for a disabled dependant can result in claims for “associative” (disability) discrimination if an employer treats the absences according to their policies but without considering the employee’s special circumstances and making allowances where reasonably practicable to do so.
• employers need to remember that with discrimination, claims there are no qualifying periods of service required and compensation is unlimited.

Personal injury claims / Health & Safety

Employers owe a duty of care towards their employees to take reasonable steps to protect them from foreseeable harm to their physical or mental health. If, for example, management were aware that an employee was suffering from ill-health due to bullying and harassment at work on racial or sexual grounds, but did nothing about it, then the employer would be potentially liable for the employee’s ill-health. Managers should be aware that once one incident of bullying or harassment has occurred (which can in itself establish liability), then, if a second incident were to occur, then that makes it much easier to establish liability for personal injury.

(This is one of the reasons why it is so important for managers to carry out return-to-work interviews and to otherwise be on the lookout for the possibility of an employee’s sickness absence(s) being partially or totally the result of problems in the workplace).

It is important to remember that a risk of personal injury can also arise through overwork as opposed to discriminatory bullying or harassment. If anyone links overwork with stress then their manager should inform HR. It is the linkage that is important: lots of people complain about being busy and working long hours; the key is when they link this to stress-related symptoms, which can vary in extent from panic attacks to being low in mood.

Data Protection, access to medical records and sickness absence

Sick absence records, Occupational Health reports and medical reports from a GP or specialist are all covered by the provisions of the General Data Protection Regulation (GDPR) which establishes important rules as to the storage and processing of such sensitive personal information.

Click the link to view our Guide to the GDPR.

The GDPR provides that if employers wish to collect and store information about employees’ health, then the data should not be processed unless there is a lawful ground for processing and when processing the information, regard must be had to the data protection principles. As far as the employment relationship is concerned, consent should not be relied on as a ground for processing information (although it will still be required under the Access to Medical Reports Act 1988 (AMRA).

Under AMRA, an employee’s consent will be required before an employer can obtain a medical report about them. In addition, AMRA provides the employee with the right to have access to any medical report before the employer sees it and also to refuse to consent to the disclosure of such a report once prepared. The employee also has the right to decline to undergo a medical examination. Forcing them to undergo such an examination may well amount to a constructive dismissal.