Attendance Management

by Kate Russell

Long-term sickness absence

Sickness absence where there is an underlying medical reason linking the absences will be treated as a capability matter. The absence may be short term, but linked for the same medical reason, long term or the employee’s work performance may simply have deteriorated because of deteriorating ill health. Managing capability sickness absence is a delicate process and has the potential to result in claims for unfair dismissal, disability discrimination, breach of contract or a payment to settle such claims.

Managing capability absence

Capability absence is nearly always the result of physical or mental ill health.

Before taking steps to dismiss, there are several questions that should be asked.

  • Just how much damage is being caused by this absence?
  • How long will the absence continue for?
  • What is the prognosis of the employee’s general practitioner or the organisation’s doctor?
  • Will there be a full recovery or would a return to the same work be imprudent?
  • Is it possible to make adjustments for the employee to return to his original role?
  • Is alternative work available, with re-training if necessary?
  • How long has the employee been working for the organisation?
  • Have all possibilities been discussed with the employee and his representative?

If the employee is unable to return or the employee is able to return but there are no adjustments that can reasonably be made, you can fairly dismiss an employee who has long-term health problems, even if he is suffering from a disability. Under the Equality Act 2010 (see Disability), you must take all reasonable steps to adjust the work and the workplace in order to accommodate the disability. Once you have exhausted the possibilities, you do not have to continue to employ a disabled employee who can no longer carry out the job.

If the time eventually comes when all procedures have been exhausted, all avenues explored and the job can no longer be kept open, the employee should be fully consulted and informed about possible dismissal. In reaching a decision to dismiss, the organisation’s capability or dismissal procedures must be followed and employers must ensure that these procedures comply with the statutory minimum procedures. If an employer chooses not to follow such procedures, then it must budget to include compensation to the employee should he choose to bring a claim.

Dismissal by reason of capability (including medical incapability) is one of the potentially fair reasons for dismissal in accordance with section 98 of the Employment Rights Act 1996. However, any dismissal for this reason must be handled fairly as well.

In all cases it is necessary to follow a fair procedure. Failure by an employer to identify the correct reason for dismissal may contribute to a finding of unfair dismissal.

Having identified the reason for dismissal, a tribunal will then consider if the employer followed the appropriate procedures. It is also important that the employer acts fairly in treating the illness as the reason for dismissal. The action taken must always be within the band of reasonable responses. Factors a tribunal may consider relevant are given below.

  • The nature and length of any illness or disability
  • Past service and record
  • Any demonstrable improvement in the attendance record
  • The effect of continued absence on colleagues and the effect of the absence on the employer’s services. Can cover be easily arranged? Tribunals must consider the size and administrative resources of the business when assessing whether the actions were reasonable.
  • Whether there are there any offers of alternative employment. This perhaps has more relevance in relation to long-term sick employees, but will be relevant in the context of an employee who may have a disability. The Equality Act 2010 requires an employer to make reasonable adjustments and this can mean looking at alternative employment.

The law does not provide specific time periods for waiting for a sick employee to return to work.

The key here is to involve and consult the employee at all stages.

Keep in contact

Keeping in contact is a key factor in helping employees return to work after a long-term absence. Without reasonable contact, those who are absent may feel out of touch and undervalued.

Make sure your conversation with the absent employee is clearly focused on his well-being and return to work. Try to focus as much on what he can do as well as things he may need help with.

Traumatic injury or sudden illness

Before taking a final decision to terminate on grounds of ill health, get up-to-date medical advice. Extend your sympathies and use discretion until the longer prognosis is known.

Planned treatment

Employees may welcome hospital or home visits but try to check with relatives first.

Stress

If you are notified that an employee is suffering from a stress-related illness, make contact within a week. Note that it is unlikely he will be ready to discuss returning at this stage. Use discretion until the longer-term prognosis is known.

Good and bad practice

Best practice is listed below.

  • Take time to know your employees and the things that affect their health, as this will help you to decide the kind of contact they would welcome while off sick.
  • Create a climate of trust by agreeing methods, frequency and reasons for keeping in contact with absent employees.
  • Consider training for you, your managers and employees on a sensitive approach to keeping in contact.
  • Consult employees, human resource managers and trade union representatives, who may be well placed to offer advice on how to make return to work more easy, although be careful not to discuss an employee’s medical condition without their knowledge and consent.
  • Be flexible: treat each case individually, but on a fair and consistent basis.
  • If the employee is able to travel, suggest they come in to see colleagues at lunch time or coffee breaks.
  • Welcome the employee back to work after absence.
  • Carry out return-to-work interviews.
  • Give employees the opportunity to discuss their health or other concerns in private.
  • Take professional advice, where necessary.
  • Remember that medication can have side effects on things such as physical stamina, mood, driving, machinery operation and safety-critical tasks

Below are some don’ts.

  • Don’t just leave a sick employee for months with no contact.
  • Don’t wait until someone goes on long-term absence to consider the best way for you to manage sickness absence (instead, plan ahead in partnership with your management team, trade union and employee representatives).
  • Don’t put off making contact or pass responsibility to someone else unless there are sound reasons for doing so.
  • Make no assumptions about the employee’s situation or their medical circumstances.
  • Never talk to people about the employee’s circumstances without that person’s knowledge and consent.
  • Put no pressure on employees to discuss their return to work before they are ready.
  • Don’t say that colleagues or team mates are under pressure or that work is piling up.
  • Never forget that recovery times for the same condition can vary significantly from person to person.

Dismissal for capability

As with absence where there is no underlying medical condition, you should follow a clearly-established procedure.

Step 1: set a time limit

Tell your employee that there is a time limit on holding the job open for his return to work. Discuss the employee’s current state of health and the likelihood of a return to work within a reasonable period with him. Also discuss what alternative work he may be able to do.

Gain the employee’s permission to talk to his doctor, and arrange to obtain a medical opinion. If the doctor is unwilling or unable to give an opinion as to when the employee will be able to return to work, ask for him to be examined by a third party.

If the doctor tells you that the employee can come back to work with adjustments you must explore reasonable adjustments. If the doctor tells you that the employee is too unwell to return to work in the foreseeable future, then there are no reasonable adjustments.

Your rules should indicate a general time limit for sickness absence, after which you will take action. Make sure you tell your employee clearly what your time limit is. Consider taking action when sick pay is about to expire.

Step 2: investigate other options

What can we do to help the employee return to work? There are several possibilities to be considered:

  • Adjustments to the workplace
  • Different work location
  • Change or reduction of hours
  • Equipment to help him do the job
  • Re-training
  • Light or limited duties.

Keep a record of any conversations about these options and your efforts to find solutions.

When you have the medical opinion, and it is still clear that the employee is unlikely to be able to return to work, discuss the steps the organisation proposes to take with him.

If the employee is not likely to return, serve proper notice of termination of employment.

Step 3: dismissal

If you have reached your deadline and the person is unable to return or cope with alternative employment options in the foreseeable future, issue his dismissal notice, taking care to state the reason for dismissal is on the grounds of capability.

Offer the right of appeal against dismissal.

Example

D had been employed by the Local Authority since 1959. He was dismissed from his position as Principal Assistant Surveyor. He was aged 56. He had had a history of ill health and, at the time of his dismissal, had been off sick for five full months.

The employer wrote to the District Community Physician and asked him to indicate whether D’s ill health was such that he should be retired on the grounds of ill health. The District Community Physician asked another doctor to examine the employee and produce reports. On the basis of this report from a second physician, the District Community Physician wrote to the organisation stating that the employee was unfit and should be dismissed. The employers then wrote to the employee and dismissed him.

There was no real consultation or effort to make adjustments for D. The letter to the District Community Physician asked a question which should be decided by management. Doctors only provide medical information about his medical condition and the likelihood of his return to work.

The dismissal was for a fair reason but it was procedurally unfair and therefore D had been unfairly dismissed.

Note that following decisions in Stringer v HMRC [2009] and Pereda v Madrid Movilidad [2009], it is clear that statutory holiday continues to accrue throughout sickness absence; sickness which occurs in holiday must be refunded to the employee (though he must comply with SSP notification rules) and where an employee is too unwell to take holiday during the relevant holiday year, he is entitled to roll it forward to the holiday year when he is next able to take holiday. Alternatively, if he is dismissed on grounds if capability, he will be paid for all holiday accrued but not taken as a result of his ill health.

Holiday doesn’t accrue indefinitely.

Example

Mr Plumb, was employed as a printer for Duncan Print Group Ltd. Having suffered an accident at work, Mr Plumb remained on sick leave between 26 April 2010 and 10 February 2014, when his employment terminated. Despite being sufficiently fit to request and take holiday, it was not until September 2013 that Mr Plumb requested permission to take all of his accrued holiday from 2010. The employer agreed to pay for accrued holiday for the current leave year (2013/2014), but refused to pay for unused holiday for the previous three leave years.

Following the termination of his employment, Mr Plumb brought a claim under the Working Time Regulations for payment in lieu of untaken leave for the 2010/2011, 2011/2012 and 2012/2013 leave years.

He argued that the right to carry over and accrue holiday whilst off sick was without any time limitation and that this was the case regardless of whether he was unwilling or unable to request to take holiday at an earlier date.

The EAT held that an employee who is on sick leave does not need to show that he is unable, by reason of his medical condition, to take annual leave. Such an employee may choose to take leave during the absence, but if he is unwilling to do so he is entitled to take the leave at a later date.

However, there is not an unlimited right to carry over and accrue periods of annual leave under EU law. At most, EU law requires that workers who are on sick leave may take their annual leave within 18 months of the end of the relevant leave year if they were unable or unwilling to take it because they were sick. (This 18 month period is set out under the relevant International Labour Organisation (ILO) convention).

The EAT concluded that the WTR should be read as limiting the worker to taking their statutory four weeksÂ’ annual leave within 18 months of the leave year within which the leave accrued. Mr Plumb was entitled to receive payment in lieu of untaken annual leave for 2012, but not for 2010 or 2011.

This decision confirms in UK law the 18 month limit on carry forward of statutory holiday entitlement and the irrelevance of the reason for not taking the holiday earlier.

See Employment Contracts for more information.