Managing Absence Masterclass

Speakers: David Poddington, Partner

Jenny Arrowsmith, Partner

Tom Draper, Associate

Annie Gray, Solicitor

“ 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

A few facts…

On average, an employee has 6.5 days off work per year

Top reasons for people calling in sick

Top reason for long-term sickness absence

Top 5 job sectors with the worst sickness rates

Successful sickness management

To keep absence to a minimum

To ensure all absence is properly and promptly recorded

To have a sustained improvement in attendance and to maintain satisfactory

levels

ACTION IS REQUIRED

Before During After

Successful sickness management

Contracts of employment

Sickness absence policy

When to report absence

What evidence is required

Right to obtain medical evidence

Expectation of being contacted

Trigger points for unsatisfactory absence levels and how it will be

managed

Before

Successful sickness management

Monitor

Keep in contact

Record keeping

Consider need to follow formal procedure

Consider need to obtain further medical evidence

During

Successful sickness management

Return to work interview

Consider whether adjustments are required

Consider whether disciplinary action is necessary

Monitor and review

After

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

What if you have paid SSP and find that the employee has been dishonest?

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

Case study continued

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?

Getting the most out of Occupational

Health

The role of Occupational Health

Specialist (Do ccMed, AFOM, MFOM or FFOM)

Who pays?

Independence and responsibilities

Making a referral

Access to Medical Records Act

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

You request that Jean be seen by an occupational health specialist. She refuses.

What do you do now?

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

Permanent Health Insurance (PHI)

Case study continued

It is now March 2014, 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.

Sickness absence and holiday

Does holiday accrue during sickness?

If so, do they have to request to take it?

Can it be carried over?

If so, how much can be carried forward?

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

Recent developments

State Funded Independent Assessment Service

Fit note guidance

Record keeping

Job matching support

Tax exemption for health related benefits paid by employer

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Any questions?

Managing Absence Masterclass

Thank you for coming

“ 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”.