Managing Sickness Absence

In the past 12 months it has been common to open a newspaper to be greeted with a headline detailing the absence record of yet another government body or local council. The UK Health and Safety Executive estimate that sickness absence costs the UK economy somewhere in the region of £12 billion per year.

Sick leave results in low productivity, higher costs to businesses and the development of a sickness absence culture.

If an employee is regularly absent then the employer should hold an informal interview with the employee and consider whether the employee should be dealt with under the formal capability procedure. If no capability procedure exists another option for the employer is to introduce policies which act as a deterrent to employee’s who are not genuinely ill such as:

Tighter reporting procedures - requiring all employees to personally telephone a specified person before a certain time on any day that they are absent
Requiring employee’s to attend return to work interviews after every absence regardless of duration
Introducing trigger points for further investigation when employee is absent on Monday mornings after public holidays.

How do I deal with an employee complaining of work related stress?

Since the case of Dickens V O2 (2008 EWCACiv1144), it will no longer be acceptable for employers to take the broad brush approach and offer all employees, absent through work-related stress, access to a counsellor. Dickens makes it clear that employers are expected to take a more proactive role in dealing with work-related stress and must consider the appropriate response in relation to the individual employee. Giving the employee paid leave and seeking a medical report is recommended as a minimum. Employers should act upon the recommendation of any report even if it means reducing hours, providing flexible working, providing counselling or authorising extended leave. It is important that employees’ personnel records are accurate and up to date otherwise the employer may not appreciate the severity or multitude of an employee’s complaints of work related stress.

Disabled Employees

When any employee is absent through long term illness or intermittently absent consideration should be given as to whether they are disabled. Under Section 1(1) of the Disability Discrimination Act 1995 (“DDA”) a person has a disability if he has

‘a physical or mental impairment which has a substantial and long-term effect on his abilities to carry out normal day to day activities.’

Certain conditions will never amount to an impairment for the purposes of the DDA such as addiction to any substance, tendency to steal, tendency to physically or sexually abuse other persons, hay fever and tattoos.

There are certain conditions that are automatically deemed to be disabilities such as:

Blindness or partial sightedness
Severe disfigurement
Cancer, HIV and Multiple Sclerosis.

Employers should always obtain a medical report if they think that an employee may be disabled. Medical consultants are familiar with the DDA and can tailor their report so that it addresses each ambit of the test for disability. Under the Access to Personal Records and Medical Reports (NI) Order 1991 an employee must be informed of their right to refuse consent to the disclosure of their medical information and must provide their express consent before any report can be disclosed by the employer. Once an employer is in receipt of a medical report they should hold a consultation meeting with the employee to consider the report and its implications and to consider if the employer can make any reasonable adjustments to assist the employee in returning to work.

If an employee is no longer able to perform the work that they were employed to do then it may be possible for the employer to dismiss the employee fairly. However, employers should consider any enhanced pension on retirement through ill-health before dismissing and should ensure that any medical report that they are relying on is up to date and provided by the appropriate level of medical practitioner. To initiate the capability procedure, the employer should follow the 3 step procedure.

Write to the employee and highlight the effect that their non-attendance is having on the business and any medical advice upon which they are relying.
Invite the employee to a meeting where the matter should be discussed.
Confirm their decision in writing giving the employee the right of appeal.

Recent Developments

In the past number of months there have been a number of cases which impact on how employers manage employees absent on sick leave. The cases highlight that this is an evolving area and therefore employers should always take advice from a solicitor.

Coleman v Attridge Law LLP (C-303/06) has created the new ‘disabled by association’ class of person to be covered by DDA.

Stringer v HMRC (C-350/06) the ECJ ruled:

Employees cannot take holiday whilst on sick leave
The entitlement to statutory holiday leave accrues during sick leave
Employees who had been absent for the entirety of that holiday year could carry forward their holiday entitlement into the next year
Employees whose employment is terminated must be paid for untaken leave even if they have been on sick leave for the entire year.

Child Support Agency (Dudley) v Truman (UKEAT/0293/08) has confirmed that the narrow comparator test applied in the case of Lewisham v Malcolm (2008UKHL43) applies to the DDA in employment cases.

If you would like to discuss any of the issues raised in this article, please contact Gareth McCay, Associate Solicitor, Employment Department, on Belfast 028 9055 3300 or by email, gareth.mccay@tughans.com