Short-term sickness absence: overview

Tim Davies and Rosie Wilkinson of Clyde & Co LLP begin a series of articles on short-term sickness absence with an overview, which includes guidance on identifying the reasons for excessive short-term sickness absence, and the procedures to address it. Establishing whether such absences stem from genuine sickness, or are a disciplinary matter, is key to addressing the issue successfully while complying with the law.

Introduction

Much is written about long-term sickness absence and rightly so; managing such absence is fraught with danger. However, short-term or intermittent sickness absences can be equally difficult to manage, and can prove to be hugely disruptive to employers. While most employees accept that covering for absent colleagues is part of working life, employees who are required to cover a colleague who is frequently absent suffer an increased burden. This may cause stress and subsequent further absences. It may also create resentment among affected employees, which, in turn, results in low morale and motivation.

Matters can be made worse if an employee is seen to be "getting away" with frequent absences. Other employees may see this as an invitation to miss work and thus a culture of absence is created that becomes difficult to break.

In light of the potential consequences of persistent short-term or intermittent absences it is advisable for employers to take proactive steps to help manage and control the situation. Establishing whether an employee's short-term absences are due to genuine ill health or malingering is key to establishing the correct procedure to be followed to address the problem.

Absence patterns

Employers tend to notice employees who frequently take time off. However, before taking action against an employee it is important for the employer to investigate the reason for absences, and attempt to establish whether or not there is a pattern to them. For example, the employer should consider the following:

  • Does the employee have a tendency to be absent on Mondays, which may be due to excessive partying at the weekend?
  • Does the employee tend to go home sick at lunchtime on days that coincide with a hobby pursued outside work?
  • Do the employee's absences coincide with a colleague's presence in the office or the requirement to complete a particular task?

Establishing patterns of absence can help to build an initial picture of the nature of the absence, and guide the employer in managing it. It is necessary to keep full records of absences to spot patterns. Therefore it should be a requirement that all absences, however brief, are reported and self-certificated.

Return to work interviews

In addition to identifying a pattern of absence, identifying the reasons for it is crucial. Return to work interviews provide a good opportunity to welcome an employee back to work while checking the reason for the absence. Such interviews may indicate whether or not there is an underlying health, disciplinary or other issue that should be investigated further and addressed (for example that the absences are stress related and due to bullying at work). Simply asking the employee why a pattern is emerging, or why so many days are being taken as sickness absence may result in him or her providing a valid and reasonable explanation. Even if no such explanation is given, the mere fact that the issue has been raised alerts the employee to the fact that the employer has noticed the absence. This may be sufficient to bring about an improvement in attendance.

Medical reports

If an employee's absence levels do not improve or the employer thinks that there may be a connection between the illnesses reported, the employer should consider obtaining a medical report. A medical report may help the employer understand the nature of the problem. When requesting a medical report, employers should ask the medical practitioner to advise on the causes of the employee's absence and provide recommendations for the management of his or her condition. With the medical report, the employer should be able to ascertain whether or not the employee is genuinely ill, and whether or not there is a disability issue. A report will also help to establish any causal connection between the employee's absences.

Employers must comply with the Access to Medical Reports Act 1988 and obtain the employee's consent before approaching his or her doctor for more information.

Taking action

The employer is in a stronger position to take action against the employee if it is established from a medical report that he or she does not have a disability or other underlying medical condition. Action could initially take the form of a formal disciplinary warning. Warnings should be issued only after a fair procedure has been followed and should include: a timescale in which improvements to attendance must be seen; suggestions for, and support with, how improvements can be made; and details of what action the employer will take should there be no improvement within the relevant timescale (for example, further disciplinary action). If an employee has had persistent unauthorised absences and is unable to provide a valid reason or has breached a sickness reporting procedure, the employer may contemplate disciplinary action and, in cases of persistent or extreme breaches, dismissal on conduct grounds. Where an employee uses even minor ailments as an excuse to call in sick, a written warning is likely to be appropriate in the first instance. A warning may also be suitable for an employee who is prone to minor illnesses, but who has no underlying medical condition or a disability under the Disability Discrimination Act 1995. Where it is suspected that the employee is not sick at all, issues of gross misconduct arise. However, the employer must have sound reasons to support its decision. Further investigations may reveal suitable evidence. For example, if an employee is off work due to sickness but has been seen playing sports or out shopping, the employer may contemplate dismissal on the grounds of gross misconduct.

If the employee's absence is due to a disability, it is important to proceed with caution. To dismiss the employee or give him or her a warning is likely to amount to unlawful discrimination under the 1995 Act. The employer must first consider whether or not reasonable adjustments can be made, for example agreeing to shorten or vary the employee's working hours, or allowing him or her to work from home. Creative and tailored solutions, provided that they can be managed by the employer, may address the issue.

Where the employee's absences are due to genuine health problems that do not necessarily amount to a disability under the 1995 Act, it is also advisable for the employer to look at ways of accommodating him or her before issuing warnings or dismissing. This is to help ensure that the employer is seen to be reasonable.

Ultimately, it may be appropriate for the employer to consider dismissal if no valid reason for absence is given or if the employee fails to make improvements to his or her attendance. To avoid a successful unfair dismissal claim the dismissal must be for a potentially fair reason. In sickness absence cases, the reason for dismissal is usually that the employee is incapable of performing the work that he or she is employed to do. However, where there are persistent, unrelated absences that cannot be attributed to genuine health reasons, a conduct dismissal should be considered. In limited circumstances, a "some other substantial reason" (SOSR) dismissal may arise, for example if the employee's absences are having a significant adverse effect on the business and/or the employee's performance, or the employee persistently falls short of attendance targets. In practice, employers are likely to argue either conduct or capability as a reason for dismissal (depending on the circumstances), and to argue SOSR in the alternative.

A dismissal must be preceded by a thorough investigation and comply with procedural requirements. If the correct procedure is not followed the dismissal is likely to be unfair, even where a fair reason for dismissal is established. To defend an unfair dismissal claim the employer must demonstrate to the employment tribunal that it acted reasonably in treating the employee's absences or poor attendance record as sufficient grounds for dismissal. When determining whether or not the dismissal was reasonable a tribunal must consider:

  • the reason for the employee's absences;
  • the prospect of the employee maintaining a satisfactory attendance record;
  • the employer's need to have an employee with good attendance in the role; and
  • the employee's length of service.

Unless the tribunal finds that the dismissal was a reasonable response by a reasonable employer, the dismissal will be unfair.

Solutions

Given that a culture of absence can evolve within a business, creative ideas are necessary to help manage it. An important starting point is that employers have an effective sickness policy and procedure so that sickness absences can be dealt with fairly and consistently. The standards of attendance and the reporting procedure expected of employees should be clearly publicised.

Some employers have specific procedures in place for managing attendance and absence. Typically, these procedures provide that a return to work interview is triggered automatically by, for example, a certain number of days' absence. This ensures the consistent application of the procedure and, if it is adequately publicised to staff, means that individual employees do not feel "singled out" when requested to attend such an interview. As mentioned above, the prospect of such an interview may, in itself, improve attendance. Additionally, an automatic, well-timed interview may allow employers to address a problem in its infancy. Requiring employees to self-certificate all short absences and commit to stating reasons for absence may also act as a deterrent to poor attendance. This may also help employers to identify that there might be an underlying health problem.

Employers may consider linking bonuses, performance appraisals or salary increases to good or consistent attendance, or providing rewards for good attendance. However, employees whose absence is disability related must not suffer discrimination.

Finally, where a culture has developed in which employees treat contractual sick pay as an extension of their holiday entitlement, employers may need to take the more drastic approach of reducing the right to full pay for sickness absence. Unless full sick pay is discretionary this will usually involve a variation to contractual terms. Contractual terms can be varied only by agreement with individual employees. Alternatively employers may, after consultation and following the proper procedure, choose to terminate existing contracts with notice and offer new contracts with revised terms. Such action is likely to result in unfair dismissal claims and the employer will need to be able to show good business reasons to justify such action. In some cases, it may feel that the risk is worth taking as the only way to break a sickness absence culture.

Next week's topic of the week article will be a case study on short-term sickness absence and will be published on 19 January.

Tim Davies (tim.davies@clydeco.com) is a solicitor and Rosie Wilkinson (rosalie.wilkinson@clydeco.com) a trainee solicitor at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.