Absence Management

The answer to this one depends on why the employee is unlikely ever to be able to work again.

You can legitimately dismiss an employee who is unable to do their job because of sickness – provided that you have followed a fair procedure before doing so. This involves consulting with the employee, obtaining up-to-date medical evidence as to the prognosis, and considering whether alternative work could be offered.

If, however, your employee is suffering from a disability (as defined in the Equality Act 2010), then you are obliged to consider whether ‘reasonable adjustments’ could help them return to work, before you make any decision on whether to dismiss. The definition of disability includes long-term conditions such as HIV or Aids, multiple sclerosis, cancer and some forms of mental illness – such as dementia, depression, bipolar disorder, obsessive compulsive disorder and schizophrenia. In addition to considering whether you need to make reasonable adjustments, you should also ensure these conditions are covered by your equality policies.

If you fail to consider ‘reasonable adjustments’ under these circumstances, dismissal might well be discriminatory, as well as unfair.

Overall, termination may be lawful, but only if you have followed fair and reasonable procedures.

You have to pay statutory sick pay (SSP) to all full and part-time employees, including agency workers on fixed-term contracts, temporary workers and casual staff except where, on the first day of the ‘period of incapacity for work’ (PIW):

• their PIW links with a claim for certain other Social Security benefits, such as incapacity benefit.
• they have already had (or been due) 28 weeks’ SSP over a three year period with the same employer.
• their average weekly earnings in the relevant period (calculated over at least eight weeks up to the most recent normal pay day) are below the National Insurance lower earnings limit (£120 per week).
• in the case of a female employee, she is within the disqualifying period related to pregnancy.
• they are away from work because of a trade union dispute
• they are in custody.
• they are outside the UK, and the employer is not liable to pay Class 1 National Insurance contributions.
• they are a new employee, and have not yet done any work for you.

You are entitled to ask for reasonable evidence of incapacity, but should inform your employees of exactly what you want them to produce. For example, you might ask for:

• self certification for spells of up to seven calendar days
• a doctor’s statement for periods after the first seven days (you cannot normally obtain a doctor’s certificate for the first seven days)

A ‘fit note’ indicates whether an employee:

• is not fit for work
• may be fit for work

As well as the high costs that occur with high absence levels, there are other issues that can occur when dealing with absences. These include:

• Lower Productivity- as projects and targets can be delayed by employees not being at work.
• Poor Quality – with employees covering absent employees’ jobs, more mistakes can happen, leaving the quality of the work questionable.
• Lowering of employee morale – due to increased workloads for the employees who are at work.

The RTW interview can be a useful aid in engaging with an employee after a period of absence – either a long-term absence or short term. Return-to-work interviews help to reduce unacceptable short-term absence. They send a clear message that absence is actively managed at the workplace and by asking employees to explain their absence face-to-face, they can also deter dishonesty.

A good return to work interview should:

• Welcome employees back and check they are well enough to work.
• Update employees about any changes that have taken place during their absence.
• Identify any workplace adjustments that may be needed.
• Develop, or discuss, the details of an agreed Return to Work Plan.
• Confirm that their absence record is correct.

Employers must ensure they do not breach the Data Protection Act2018 when obtaining, storing or using information about their employee’s absence records. Any details regarding an employee’s health, is categorised as sensitive personal information under the Data Protection Act.

Employers have a legal responsibility to make ‘reasonable’ adjustments to support any employees who have a disability or condition outlined in the Equality Act 2010, under the disability discrimination section.

Mental health can also be covered under this legislation.

Accessing employees’ medical records from their GP requires employers to follow the Access to Medical Records Act 1998.