As an employer the wellbeing of your staff will be a key priority. Staff absences can pose a particular challenge; on top of concern for your employees, they can lead to greater pressure on colleagues, additional expense and, if you get it wrong, could even lead to a legal claim. Having an effective absence policy can help you deal fairly and lawfully with both long and short-term absences.
Sickness Absence Policy
Whilst it isn’t a legal requirement to have a sickness absence policy, it can be helpful to have a clear framework to apply if you find yourself dealing with absences. Having such a policy can be very helpful in showing that you are acting fairly - provided of course you follow it! Make sure though that your policy is both thorough and practical. It is important your policy covers key points and sets out a fair process which strikes a balance between the interests of sick employees and the needs of the business.
Regular Contact
As a general rule employers should keep in regular contact with employees during sickness absence, checking on their progress and keeping open lines of communication going. However, be mindful not to apply pressure for the employee to return to work. You may need to dial down on contacts if an employee tells you they are having an adverse effect. In some cases (particularly those involving stress) it can be better to give employees time to recover. You may want to agree with the employee how frequently you will be in touch. Employees need to do their bit too; they have a duty to keep employers informed on their condition and likely return date. It can be unreasonable for an employee to refuse any communications.
Keep Records
Sickness absences should be monitored, and a record kept of all absences including the reason for the absence. Not only is it important to keep track of how much time off an employee may need (which can be an indicator that capability action is necessary) but keeping track of absences can flag up longer-term health issues – in particular disabilities – that may need further action by you.
Disabilities
Many employees have disabilities which may not be obvious to their employer. Disability is defined in the Equality Act 2010 as a physical or mental impairment that has a ‘substantial’ and ‘long term’ negative effect on someone’s ability to do normal daily activities. Whilst some employees may tell you they are disabled, others may not. Legal obligations are triggered when an employer knows – or should reasonably know – that an employee is disabled. Therefore, it is important to actively consider whether an employee who is off sick may have an underlying health condition which could be considered a disability. This should be kept under review, bearing in mind that an employee’s prognosis and condition may worsen over time.
Reasonable Adjustments
If your employee is disabled, you should consider making reasonable adjustments. You are under a positive duty to take such steps as are reasonable to avoid the employee being at a substantial disadvantage and there are a range of reasonable adjustments which you could make from providing additional equipment to allowing flexible working.
Occupational Health Report
If the sickness absence is long term or you are considering more serious action, an occupational health report may highlight whether your employee is disabled. The report may be helpful in planning next steps regarding their return to work and the reasonable adjustments you should make.
Sick Pay
You could decide to pay your employees contractual sick pay in addition to statutory sick pay, providing financial certainty during their period of absence. Alternatively, you may opt for discretionary payments where there is no obligation to pay additional sick pay to every employee. Whichever approach you adopt or if you prefer to SSP only, ensure it is clearly set out in contracts of employment. It can be helpful to conduct a return-to-work meeting to see how your employee is and consider any further action you could take to help the employee return to work, such as reasonable adjustments.
Risks
You should be aware of the risks if sickness absence is handled incorrectly on both colleagues and the wider work force. If the employee has been dismissed after two years of service, without a fair process and reason, you may face a claim for unfair dismissal. You may also face a claim of disability discrimination if you dismiss the disabled employee or fail to make reasonable adjustments.
Top Tips
1. Check your sickness absence policy.
2. Keep in regular contact with the employee if it is appropriate to do so.
3. Monitor and record absence and communication.
4. Establish if the employee is disabled within the definition of the Equality Act 2010.
5. Consider referring the employee to occupational health.
6. Make necessary reasonable adjustments.
If your business is currently navigating managing sickness absence and you require advice, please contact our Employment Law team 01392 207020.
