Managing Absence

Jenny Arrowsmith, Partner

“ the material for this seminar has been prepared solely for the benefit of delegates on this seminar. It should not be relied upon for giving advice and Taylor&Emmet LLP accept no responsibility for loss or consequential losses incurred as a result of reliance on this material”.

Introduction

The cost of sickness absence is significant

Cost is not the only consequence of sickness absence

Management of sickness absence is key to prevent a culture of absenteeism and its consequences

Duty to provide safe working environment

Duty of care

Duty not to breach trust and confidence

Case study

Jean has worked for a veterinary surgery for the past 5 years as a veterinary nurse

At the beginning of the year, she had a week off work and was diagnosed with bronchial emphysema

Over the past couple of months she has had 7 separate instances of sickness absence lasting between 1-2 days each. The reasons she has cited include chest infections, cold & flu like symptoms, migraines and back pain

Your absence policy triggers action after 10 days which is now reached

Multiple reasons for absence

The importance of documentation

Are all absences related?

Is there an underlying cause?

Are the reasons for absence genuine?

Consider whether further action is required – investigation / medical evidence / disciplinary action

Case study

Having looked at her self-certification forms, you note that Jean’s absences tend to be on a Friday and a Monday

Malingering illness

What is it?

What can you do if you suspect it?

Do you need absolute proof?

Beware of unreliable evidence

Don’t make assumptions

Case study

More recently, Jean has been off work for 2 weeks and is to remain off sick with stress and bronchial issues for another 2 weeks

Jean has submitted a note from her GP for this recent period of absence

Getting the most out of Occupational Health

The role of Occupational Health

Specialist

Who pays?

Independence and responsibilities

Making a referral

Case study continued

Before Jean went off sick, you had invited her to attend a disciplinary hearing for a conduct matter which is due to take place this Friday.

You are concerned that her sick note from her GP refers to Stress. You are concerned that requiring her to attend a disciplinary hearing may exacerbate her stress but at the same time, you suspect that she will keep getting sick notes so as to avoid the hearing and so she still gets paid. What should you do?

Case study continued

You request that Jean be seen by an occupational health specialist. She refuses. What do you do now?

Access to Medical Records Act 1988 (AMRA) PROCEDURAL SAFEGUARDS

The employer must give the employee a statement of their rights

The employee must provide written consent to the examination and preparation of the report

The employee must have the opportunity to see the report before it is sent to the employer

The employee may request changes to the report but may not insist on them

The employee may refuse to allow the report to be disclosed to the employer

Case study continued

Jean agrees to see the occupational health consultant. The report identifies that she is fit to attend the disciplinary hearing if regular breaks are given. However, her bronchial emphysema is worsening and she is not capable of fulfilling her duties and it is unlikely that she will be for quite some time, if at all (bronchial emphysema is a degenerative illness and so it is likely that it will continue to get worse).

She has had the condition for 3 years and it impacts significantly on her ability to cope with day to day tasks including walking, due to shortness of breath.

According to the report, the majority of the causes of absence, with the exception of stress, may relate to this condition.

Disability related absence

DUTY TO MAKE REASONABLE ADJUSTMENTS

Examples: Making adjustments to premises Allocating some of a disabled person's duties to another person Transferring a disabled person to fill an existing vacancy Altering a disabled person's hours of working or training Assigning a disabled person to a different place of work or training Allowing a disabled person to be absent for rehabilitation, assessment or

treatment Employing a support worker to assist a disabled employee Modifying disciplinary or grievance or other procedures

Case study continued

In an absence meeting, Jean’s union representative argues as follows:

“You cannot discipline her because it is all genuine absence”

“Disability related absence must be discounted when looking at an employees’ sickness absence record”

“Your sickness absence procedure should not apply to disabled employees”

“A variation (extension) to sick pay should be a reasonable adjustment”

Grounds for dismissal

Normally you will have already held at least 2 meetings

Write to employee (invitation)

Meet with employee (remember their right to be accompanied)

Give the employee an opportunity to present their case

Consider up to date medical position

Consider alternatives

Right of appeal

Case study continued

Jean continues to be off work after 28 weeks’ absence and she has little prospect of a return to work. She has exhausted entitlement to sick pay.

She has holiday accrued but not taken and it is approaching the end of the holiday year. Company policy says she should not be allowed to carry it over. The holiday year is 1 January to 31 December.

You have decided to dismiss her and want to know what you should do about her accrued and untaken holiday.

Notice pay

Termination with notice

Pay in lieu of notice depends on terms of notice provisions

Entitlement to full pay if notice entitlement is statutory minimum

Any questions?

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