About The Author
Rebecca Young is an Employment Law Consultant with over 15 years experience and has been working for Avensure since 2015. Rebecca provides HR best practice and Employment Legislation support on a day to day basis to hundreds of UK based employers across many different sectors. Through these articles Rebecca hopes to share her experience and give employers a better understanding of how important it is to proactively seek advice from our experts in order to protect their businesses.
An employer’s guide to absence management – Part 3
In Part 2 we focused on the importance of record keeping, the use of absence management tools and what information you are reasonably able to request when employees advise you they are sick.
Part 3 will focus on how to proactively manage sickness absence from managing short term absences and also assessing an employee’s medical capability.
Can you issue warnings to employees for being off sick?
Yes, you can.
If you have followed the advice in part 1 and 2 you will be able to see the difference between general absence and any that may be disability related.
By recording the absences properly, you may even be able to spot patterns. For example, are the absences always occurring on Mondays and Fridays, before or after annual leave/bank holidays or during key sporting events? You can tackle this.
Employees can’t help being ill, is a warning fair?
If you follow a fair disciplinary and investigation process (remember our experts are on hand to give bespoke advice on this) then it is appropriate to use disciplinary action to tackle frequent absence.
- Please don’t go too far back on your records, look at the last 12 months attendance initially.
- Make sure that if you use methods such as the Bradford Factor to highlight absence trigger points, that any absences for disabilities, pregnancy and time off for dependents are not.
I suspect my employee has not been genuinely ill – can I withhold sick pay?
If you have a reasonable suspicion that your employee is not genuinely ill, then you do reserve the right to withhold sick pay. However, you need to be very careful with this.
Please don’t act on assumptions or hearsay. Investigate properly and seek legal advice from our experts.
Remember- statutory sick pay (SSP) is a ‘statutory’ payment required by law. Contractual sick pay is a contractual entitlement. So withholding these payments should be an absolute last resort and exercised with caution.
What is classed as long-term absence?
Unsurprisingly there is no legal definition of what constitutes ‘long-term’.
This will depend on the illness your employee has and what their GP/Specialists are advising them in terms of treatment and prognosis. This is why keeping regular contact with an absent employee is important.
My employee needs an operation and may be off for some time. They have also indicated they may not be able to return at all or may even need adjustments to the workplace. I am supportive but I am very concerned about the financial impact of paying sick pay and paying for sickness cover. What can I do?
This is the type of scenario where you are now faced with assessing your employee’s medical capability, i.e., whether they are medically fit to work.
Start by seeking their consent to obtain a medical report from their GP/Specialist and/or refer them to occupational health.
Do I need a report if my employee is telling me they may not be able to return work?
Employees who are absent long term are very likely to be classed as having a disability in accordance with the Equality Act.
Avoid unfair dismissal and discrimination claims by showing that you have acted reasonably and have:
- sought medical guidance ahead of making any decisions
- Considered if reasonable adjustments can be made to assist the employee in returning to work.
Can my employee refuse to give permission for a report?
Yes they can refuse permission in accordance with their rights under the Medical Reports Act.
If they refuse then you will likely be forced to make an assessment regarding their ability to work based on the information you have i.e., how long they have been absent and the information they have given you to date.
So whilst an employee can refuse it’s not really in their best interests.
Can’t I just ask them to resign?
No. You must never ask an employee to resign. If they have over two years’ service this can lead to a claim for constructive dismissal and also in the case of long term absences, a discrimination claim.
- It’s vital that employers seek advice before dismissing an employee for any reason but particularly medical capability.
- Compensation awards for discrimination claims are uncapped.
- Don’t forget about your absent employee- you have a duty of care to keep in touch
- Our legal experts are on hand to give you bespoke advice and guidance on this and all employment law/HR matters.