Absent again on sick leave

Time lost through sickness and injury absence places a significant burden on employers in terms of cost. If there is an occupational sick pay scheme then the top up between Statutory Sick Pay (SSP) and basic pay can be a considerable drain on cash flow. SSP was a transfer of function from the then Department of Social Security to the employer and is now virtually almost entirely financed by employers.

Irrespective of whether there is an occupational sick pay scheme or not, there are other costs falling to the employer on account of ill-health absences. Work has to be rearranged, casual or locum staff taken on or existing staff have to be asked to work overtime. The disruption can be significant, leading to a loss of efficiency and, more directly, to a possible loss of customers if orders cannot be met. Many employers see this situation as just one of the difficulties that have to be faced in running a business. They feel that little or nothing can be done about it. This is a negative approach and steps should and indeed can be taken to improve matters.

In the majority of cases people who say they are ill are genuinely convinced of their illness. On the other hand, giving sickness as a reason for absence, as experience shows, is not always a true reflection of the situation. Sickness is often used as a cloak for an absence resting on some entirely unrelated basis. Furthermore, many employees persuade themselves that they are too ill to come to work and, in doing so, are expressing a lack of will to meet minor indispositions.

Keeping records

An essential and basic requirement to control the position is to set up a recording system. There should be one in place as part of the SSP arrangements but there has been a relaxation of the requirements since the introduction of the scheme. Originally, any employee absent for a period shorter than a week (after which a doctor’s certificate had to be secured) was required to complete a self certificate on return to work. The current requirement applies to absences of one to four days. Employers should continue to insist on employees formally certifying that they were sick on any of the preceding days. All absences should therefore be logged however short.

Regular study of the records may show patterns of absence on an individual, departmental or location basis. It is not until such records are kept and studied that management can get any idea about those employees who have excessive sick absence records.

It should be stressed that absences not covered by a certificate, or by the authority of the manager concerned, must be regarded as unauthorised. Such situations should lead straight away into disciplinary procedures.

The perusal of records may therefore show that some individuals are away for periods – either intermittently or in long stretches – wholly out of line in comparison with similar employees or groups of employees. This is the starting point for action. To allow the situation to continue is to allow the strains imposed by disruption to sap further the ability of the firm to compete in the market.

Avoid disciplinary procedures

Dealing with individuals who have unsatisfactory absence records should not be through the disciplinary procedure unless it transpires that absences are not due to ill health but have been described as such to cover an absence. Such a situation is a major disciplinary matter. Otherwise, treating ill health as if it were disciplinary in character is not going to help anyone suffering from migraine or a slipped disc. On the other hand a warning has to be given at some stage that a continuing unacceptable level of absence will inevitably throw into doubt continued employment.

The essential framework within which ill health problems should be examined was set out in an employment appeal tribunal case – East Lindsey district council vs Daubney. The tribunal said: “Unless there are wholly exceptional circumstances, before an employee is dismissed on grounds of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps are taken by the employer to discover the true medical position. One thing is certain: if the employee is not consulted and given an opportunity to state his case, an injustice may well be done.”

Put it in writing

The first step is to put to the employee in writing the record of absences and the reasons given. The letter should go on to invite the employee to a discussion about the record and its implications for the future. It is quite possible at this early stage that some employees will revise their threshold about whether feeling unwell in the circumstance of any particular situation is sufficient to support a sickness absence.

If attendance improves then the problem solves itself. It is important that the letter is drafted in courteous and friendly terms. An employee suffering from ill health is not helped by any other approach.

If there is no improvement, then a further letter should be written, again setting out the facts of the absence. The employee should be invited to submit his or her medical evidence about the likelihood of good attendance in the future. At this point the company should also refer the employee to its own medical adviser for an opinion about attendance and kind of job that might be undertaken in the future.

If the contract of employment gives the employer power to insist on this then there should be no problem. Even if it is not in the contract, the point about seeing the doctor should be put with emphasis. Refusal to comply with a contract condition or with a request will inevitably count against the employee.

Medical evidence

In the light of up-to-date medical evidence full discussion should then be undertaken with the employee. The purpose here is to explore how the individual sees the future: can the existing job be continued, are lighter duties, shorter hours, or another job possible solutions? All these issues must be carefully considered to see whether an accommodation can be reached. This is an employer’s duty but it does not extend to the point of the employer having to turn arrangements upside down to find that accommodation. What the employer has to show at an employment tribunal is that if no solution can be found then the employer acted reasonably in coming to the decision to dismiss. The point is that the decision is an employer’s decision, though a major input will be full and current medical evidence.

The considerations which have been worked out over a number of years of practice, experience and court decisions have been included in the requirements set out in the Disability Discrimination Act 1995 (PJ, October 30, 1999, p716-7). The key words are “reasonable adjustments” that employer must consider and if at all possible make in dealing with an employee or a potential employee who has an impairment as defined in the Act.

This consideration applies not only in the context of recruitment but also while an employee is at work but forced to take sick leave on account of a condition. It is the “adjustments”, eg, alternative work, changed or reduced hours, direct help for the employee, changes to the working environment, etc, which have to be examined carefully.

The Act does not apply to small employers, but only to those with 20 or more employees.

Pregnancy and sickness leave

With regard to sickness and pregnancy and maternity leave, the law says that an employee is automatically unfairly dismissed if “the reason or the principal reason for her dismissal is that she is pregnant or is connected with her pregnancy”. This is to be understood in a wide sense and would certainly cover pregnancy related illness, miscarriages or postnatal complications.

Some cases are taken to employment tribunals on the basis of a claim of unfair dismissal because employees believe that they were suffering from “ordinary” ill health. These cases stem from the fact that termination of contract in these circumstance is an expression of capability. If the employee is not there or only present part of the time to do the job then the employee is incapable of filling the requirements.

When coming to a decision on whether a dismissal was fair or unfair, tribunals will be particularly concerned with considering how and on what basis an employer acted. The size of the firm (but note that there is no threshold as to numbers) and the position held by the employee will be important factors in the context of alternative work, lighter duties or shorter hours.

Consultation

The degree of consultation with the employee and the extent to which his or her views have been or should have been taken into account are features which cannot be overemphasised. Tribunals are also concerned to test the amount of medical evidence brought into consideration of whether an employee should be dismissed or not and whether the evidence properly relates to the current position, ie, is not out of date.

Dismissal on health grounds is not an easy matter especially if the employee has been a good worker. However, decisions have to be taken if the organisation is to continue to be effective in the market place. Checking up on sickness records and acting accordingly is not an expression of harassment but a feature of good management.