Zack Gothelf: Hello, my name is Zack Gothelf and I am trainee solicitor at Gowling WLG in the Employment, Labour & Equalities department. What you are listening to today is: common pitfalls for managing sickness absence. Today, I will be putting questions to Angela Lown and Alice Loughney, who are both Associates in our team. These are issues that will be of key use to HR professionals and to anyone who deals with sickness and absence policies at work.
So, can we dismiss an employee on sick leave?
Angela Lown: It's a question that we are often asked actually and there's a lot of misconceptions out there. People think that you can't dismiss somebody who is on sick leave and the answer to that question is, yes, you can, but you need to be very careful about how you go about it if you are going to avoid an unfair dismissal or disability discrimination claim. The first step is always going to be to engage with your employee.
Zack: What if that's not possible?
Alice Loughney: That's not at all an uncommon scenario but the answer is that you are not expected to achieve the impossible. So, if the employee isn't engaging the only obligation on you, as an employer, is to take reasonable steps to make that happen.
Angela: Try and understand your employee's medical condition, if you can, but we would always recommend that you seek medical evidence, for example, consider a referral to the occupational health team, if you have one, or ask for your employee's consent to request a GP's report. When you receive that report or that evidence, review it carefully and be alive to any disability issues. If the report suggests that there are disability issues then you must consider reasonable adjustments and by that I mean adjustments to help the employee take part in any capability procedure, as well as adjustments that could be made to help them return to work. You should also consider alternative positions that might work for your employee, for example, depending on the nature of the health condition in question. But if having done all those things, you come to the conclusion that dismissal is an option, then it is essential that you follow a fair procedure. The first step will be to invite them to a meeting and consider an alternative location when you do that, for example something that is perhaps a bit closer to the employee's home.
Zack: What if the employee doesn't come to the meeting?
Angela: Well, as Alice has already said, as an employer you are not expected to achieve the impossible. As a first step, we would encourage you to invite written representations from your employee if they are not able or willing to attend. But, if after continued requests the employee still fails to engage, then you can consider holding a hearing in their absence, of course notifying them of that fact in advance. Assuming that they are going to attend, offer that they can have somebody attend with them. At the meeting consider the representations carefully and keep a record of your reasoning and deliberations. But in the end, if you decide that dismissal is the only option, you must inform your employee and confirm that in writing.
Zack: When should an employer start keeping records?
Alice: So, a common mistake is for employers not to think about record keeping from the get go, even if an employee calls in for a day off with a cold you need to record certain basic information.
Zack: And what records do they need to keep?
Alice: So, on the first day of any absence you'll want an email or a note of a phone call with the employee recording the reason for the absence. You'll also want to record how many days off sick they had and the reason they were off sick on each of those days. Later down the line when they return to work, you will want a record of a return to work interview, if one was carried out, and you also need to keep a careful record of any GP fit notes.
Zack: And is there a legal minimum?
Angela: There is. For employees to be eligible for SSP, they need to comply with certain notification requirements. That depends on their length of absence but could be a self-certification or a doctor's note and, if they are going to qualify for enhanced contractual pay, you may have your own notification requirements or other requirements.
Alice: Of course, as well as the legal requirements for record keeping, there are certain practical reasons why you will want a good record of any absences. So, there are three main commercial reasons for this:
Firstly, in terms of managing absence across the organisation and tracking how much this is costing you, you will want to see if there are any patterns or steps you can take to reduce your sickness absence levels.
Secondly, on an individual level, you will want to have a clear record of the reasons and length of any absences so that you can identify whether there's any underlying issue in relation to this individual employee. This will also allow you to identify whether any trigger points under your policies have been reached.
Thirdly, if further down the line you need to take any formal action in relation to an employee who has been on sick leave, having a decent paper trail will be invaluable.
Zack: What's the most common pitfall that you have both come across?
Angela: I'd say that the most common pitfall we come across is a failure to have a sickness policy or failing to communicate them or implement them properly. This causes real problems for both the employer and the employee. The employer has no ability to keep a record of sickness absence, to monitor it and to assess it and the employee has no clue about what they are supposed to do in the event that they are unwell.
Alice: It is best practice to have a clear policy and procedure when dealing with sickness absence and to make sure that this is communicated to all employees to guarantee a sufficient level of understanding, both when you are an employee taking a sick day and when you are a line manager who is dealing with this. It's helpful for these policies to contain clear guidelines on any flexible working arrangements offered, as well as time off available for doctor's and dentist's appointments, holiday entitlement and unpaid leave to deal with emergencies.
Zack: Are there any practical steps that you can take?
Alice: Yes, so once you've implemented your clear policy, it's important to back this up with sufficient training. So, for all employees on induction, it's a good idea to highlight the procedures that they need to go through under your policy. For line managers who are implementing this on the ground, it's worth considering having specific training for them and potentially refresher training, if it has been a while since the policy was implemented or if the policy has been updated.
Zack: What types of adjustment should employers be considering to best manage sickness absence?
Alice: So, as we've already talked about, it's important to keep in touch with employees throughout their sickness absence and in so doing you should know what your employees are most concerned about. Ask them what will help you return to work, what will help you manage work stress, do they need a medical examination or an occupational health appointment to confirm or check whether they are disabled under the Equality Act? The adjustments you make might be small and procedural, for example holding return-to-work meetings over the phone or at home rather than in the workplace, giving employees more notice before any meetings are held to give them additional time to read and prepare or allowing them to be accompanied at meetings even when there's no statutory obligation for you to do so. Equally, adjustments might be more long term or more substantive, for example, agreeing that the employee could work reduced hours when they come back, agreeing a phased return to work, changing their work location, changing their line manager, changing their seating, introducing agile working or paying for transport. So, as you can see, there's a whole range and if substantive adjustments are likely to be needed this is something that occupational health might be able to help you with.
Zack: Given that sickness absence is so costly, are there any preventative measures that employers can take?
Angela: Well, it's an old adage but it is a true adage that prevention is always better than cure and, of course, there are steps that employers can take to minimise sickness absence rates. You need to look at the culture of your firm. You need to establish the reasons for any absence, for example, are you having high rates of workplace stress absences. These all indicate that you need to look at your culture. So examples can include implementing family-friendly workplace policies. We've already talked about agile working, that can be very beneficial for people. But also consider maybe a stress management course for your employees if workplace stress is a particular problem for your organisation. But actually don't forget that your employees are human and sometimes just a friendly ear can go a very long way.
Zack: Can we contact an employee whilst they are off sick?
Alice: As a business of course you will want to keep in contact with employees who are off sick, so that in the extreme the business does not grind to a halt and you can look at putting in place temporary arrangements, perhaps getting in temp. staff if you need to.
Zack: How much contact should you have?
Angela: Well, how much contact you have will depend on the employee's role and the size of the business. You would expect that for more senior employees, more contact would be needed. But you must be aware of a common pitfall, which is often on the other end of the scale, which is being overbearing or overly intrusive and this could cause undue stress or potentially even amount to harassment. Again depending on the reasons for the absence you will need to tread more carefully where employees are absent for work related stress relief reasons. Be careful though that for those employees who are off on long term absence you don't cut off contact altogether. Keep them in the loop with any major developments in the business and keep them invited to social occasions, if that's appropriate.
Alice: Another point worth noting back to record keeping is that you will want to keep in contact with employees to make sure they continue to provide you with up to date fit notes. This is important as evidence for incapacity for statutory sick pay purposes and may also be required for contractual sick pay if you have an enhanced scheme depending on the notification requirements of that scheme.
Zack: Thank you both Alice and Angela and thank you to you for listening to our podcast. If you have any queries on the topics that have been covered today, please don't hesitate to get in touch.
*HSE (Health and Safety Executive) Cost to Britain Model 2014/2015 for illness (excluding injuries)