Employers need to tolerate some sickness absence from staff, but it can be disruptive and should not be ignored, says Tracey Collinson-Smee
On average, an employee will be absent owing to sickness for 4.4 days each year. Consequently, it is wise to have in place a robust sickness absence policy – ideally stated as ‘non-contractual’, primarily so that you can change it if you need to, without getting consent first. The policy needs to be explained and fully understood by your workforce before implementation, and operated fairly and consistently.
Having a clear policy in place should enable you to take steps, including possible disciplinary action, if an employee fails to comply with it. Furthermore, for repeated short-term sickness that is not, for instance, disability*- or pregnancy-related, you could go through a fair warnings procedure if the absence is unacceptably high.
What your policy covers will largely depend on how your business operates and what is important to you. It could include requiring employees to: make a daily telephone call by a certain time to notify absence so that you can arrange for cover; describe the illness and say when a return to work is anticipated; and complete a self-certificate upon return.
It could also require them to: produce a medical certificate or ‘fit note’ promptly where the absence exceeds seven calendar days (unless the employee is under a return-to-work plan via the Government’s Fit for Work service; note that GPs charge for medical certificates if requested before absence of more than seven days and that such a request can delay your employee’s return); consent to the employer obtaining medical reports; and attend a return-to-work interview.
The policy would also usually outline sick pay entitlements and a procedure for managing longer-term incapacity, including obtaining medical evidence and making reasonable adjustments.
Where a fit note that includes advice is produced, you ought to try and accommodate the suggestions made by the GP. It is important to do so where your employee may have a disability*, as a failure to make reasonable adjustments – which the advice could amount to – may amount to disability* discrimination under the Equality Act 2010.
Any proposed adjustments should be discussed with the employee. If the hours or duties suggested are different from normal, then you can also discuss variations to pay and so on, and how long they should last for. If it is not possible to make changes, or the employee does not agree to the terms you propose to vary, then the employee remains on sick leave in the normal way. You should keep the situation under review and take legal advice if you are not sure.
It is vital to discuss an employee’s absence, irrespective of its length, to check the employee is well enough to be back at work, support the return and monitor absence. For short-term absence, the meeting should take place on the first day back, face to face.
The meeting will allow you to: show concern for the employee’s health/wellbeing; ask if medical advice has been taken; and discuss the reason/s for absence and levels of attendance generally. It is also an opportunity to explore ways of reducing absence; check the reporting policy has been complied with; check for underlying issues, such as work-related matters that may need investigation and/or action; update the employee on matters they may have missed; assess whether or not an updated risk assessment is required; and, most importantly, put the employee off taking further sickness absence.
*Note that ‘disability’ for the above purposes is a legal term, not a medical one. Take legal advice where you are unsure. Failing to respond appropriately when an employee has a disability can amount to discrimination.
Tracey Collinson-Smee is employment solicitor at LHS Solicitors, FSB’s legal services provider. If you have a legal query, call 03450 727 727 or visit fsb.org.uk/benefits and select FSB Employment Protection.