Dealing with staff sickness and staff absence needs to be handled carefully to avoid creating difficult situations. People will, on occasion be absent from work due to sickness or injury, so it is important you have written and published polices and procedures in place to deal with both short and long term staff absence. The reason for the absence may be sickness, injury or some other reason which is unexpected but prevents the member of staff from coming to work.
You will need to know why staff are absent, when they will be returning to work and how you will deal with these situations as and when they arise. There are legal issues to think about but making sure your staff are well and happy is a matter of common sense and doing the right thing as their employer and so giving clarity about how certain situations will be managed is important.
You may need to treat short term absence differently from long term absence. Your policies and procedures should be capable of dealing with both short and long term absence. Short term absence is typically unplanned, intermittent, often involves odd days off work and the absences may be unrelated or related. You should have a policy that sets out what the threshold number of absences is before you consider taking action. You will need to outline how you will consult with your employees and whether and under what circumstances you will make any adjustments to accommodate their illness or injury (even if they don’t have a disability) and at what stage you will issue warnings and consider dismissal. Ensure you deal with short term absence promptly and speak to them at the earliest opportunity (ideally on their first day back) about the reason for the absence.
Many companies require their staff to call in and let their line manager know if they are too ill to come into work. Your policy should be clear about what you as their employer expect them to do in the circumstances. If they are sick for up to 7 days, they need to ‘self-certify’ the reason for their absence. You should provide a self-certification from as part of your procedure. If an employee is absent for more than 7 days, you should ask the Employee to obtain a fit note from their Doctor, which should set out the nature of their illness and how long they are likely to be off work. You should ask the employee to provide you with the fit note to cover the period of absence. Fit notes should be accepted at face value unless you have convincing evidence which casts doubt on whether the employee is genuinely ill, but remember, not all illnesses mean your employee is confined to bed, so don’t jump to conclusions if you hear or see evidence of them not being at home during periods of absence. Even if you do have reasonable doubts about an employee’s condition, you must not assume or accuse the employee of lying.
Back to Work Interviews
Staff should be asked to attend a back to work interview after any period of absence which is due to sickness, injury or some other unexpected or unauthorised reason. Conducting return to work interviews when someone returns to work even if they have only been off a day or two will help you identify if there are any underlying health issues or other problems you need to investigate before acting. Your employee may be off work sick for a number of reasons. They may be absent because of a general physical condition, or because of high stress levels, poor working conditions, they may be being bullying or harassed at work, or they could have other mental health issues that are causing them problems. Absence also happens for other reasons, so you need to know how to deal with these types of situations too. For example, there may be issues at home that involve other family members or emotional problems causing the absences.
You may find that patterns emerge which may suggest the employee is feigning illness because they just don’t want to come into to work – for example, the employee might always phone in sick on Mondays or Fridays, which may give rise for concern if a pattern emerges.
You should ask the employee about these at a return to work interview and often letting your employee know that you are aware of the pattern may be enough to resolve it.
Employees should be asked to explain any inconsistencies between the reason given for their absence and any observed behaviour. For example, if the employee has said they are too ill to get out of bed but has spent the day at a music event you are likely to want them to explain. If the employee is unable to give a satisfactory answer, it might be appropriate to instigate the disciplinary procedure.
If you are not an HR professional, you should not instigate disciplinary procedures against an employee without first seeking guidance from HR or a legal advisor. If mistakes are made at this stage, you can risk the employee resigning and claiming constructive dismissal or bring a claim for unfair dismissal if they are subsequently dismissed.
Remember that genuine absence is not a form of misconduct. If, due to absence, you want to take formal action, you should deal with this as a capability issue. If the employee has more than 2 years’ continuous service, you must follow a fair policy. This typically involves meeting with the employee and issuing a series of staged warnings and giving them an opportunity to improve before you consider dismissal. The final written warning should make it clear to the employee that they may be dismissed if their attendance does not improve within a specific time frame. If you do dismiss, you must give the employee notice as set out in their contract.
Long Term Absence
You need to manage long term absence differently. Most absence policies identify long term absence as one that lasts for at least four weeks or is because the employee has an underlying, recurrent condition which ‘flares up’ from time to time.
When managing long term absence, it can be helpful to obtain a medical report, ideally from a health professional other than the employees GP, who can review things with impartiality. You may be able to use this report to challenge the employee’s claim that they are too ill to work.
You’ll need to meet with the employee to discuss the report before taking any action based on its recommendations. You will need to write to the employee and agree a time for the meeting. You may need to hold more than one meeting to consider the employees view and the meeting could be held at their home or a neutral venue if their place of work is unsuitable. Always confirm that your employee is comfortable and agrees to your choice of venue for any meetings.
Stay in Touch with Your Employee
In cases of absence which are long-term or if, intermittent but caused by an underlying condition, you should maintain regular contact with the employee to keep them up to date with any developments at work, see how they are feeling and when they expect to return to work. Contact should be regular and supportive but not intrusive, especially where the employee is suffering from stress.
The employee may be a disabled person if they suffer from a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Long term means the impairment has lasted for at least 12 months already; or is likely to last at least 12 months; or to last for the rest of the person’s life. If the employee has a disability you may have additional obligations under the Equality Act 2010.
If you are not sure whether your employee is “disabled” or need information to help you understand the employee’s condition and prognosis, you may need to obtain a medical report. You will need the employee’s written consent to attend a medical examination for the purposes of preparing a report and again, use someone other than the employees GP to conduct the review and prepare the report.
You have a duty as an employer to make reasonable adjustments to assist employees to overcome any disadvantage that they suffer in the workplace related to their disability such as temporarily their adjusting their duties or a phased return to work. An adjustment will only be reasonable if it makes a difference and it must help the employee get back to work, not just ease hardship when off sick.
Even if the employee does not have a disability, it is often worth considering whether adjustments or measures can be taken to assist an earlier return to work.
It is important to keep accurate records of all steps you take in a capability or disciplinary procedure to provide evidence that you have acted reasonably. This includes telephone conversations, letters and emails and any actions plans you put in place. Any information you record about an employee’s health comes under a special category of personal data under the Data Protection Act and you will need to rely on the General Data Protection Regulation to lawfully process it.
If in doubt about how to deal with short term or long term staff absence, seek advice from an HR Professional or Legal Advisor. Keith Hanson, our qualified HR Consultant is available to give you more advice on dealing with staff absence and implementing policy and procedure.