How Employers Can Avoid Discrimination When Managing Sickness Absence

What is Discrimination in the Workplace?

The Equality Act 2010 prohibits less favourable treatment of people and groups of people based on the protected characteristics below:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion and belief
• Sex
• Sexual orientation

Examples Of Less Favourable Treatment In The Workplace Can Include:

• Passing someone over for promotion
• Denying someone an interview for a vacancy
• Dismissal or withholding of salary or bonus payments
• Issuing unreasonable instructions or setting unrealistic/unachievable objectives or targets
• Failing to properly investigate and act upon complaints of discriminatory conduct or harassment

Here are some common mistakes when managing sickness absence that could lead to a discrimination claim:

1. Recording Sickness Absence Inaccurately And Incorrect Use Of Annual Leave

When dealing with employee sickness, it’s important to understand what constitutes sickness absence and what doesn’t. Sickness absence is when an employee is unable to work due to their sickness.

Below are types of absence that should not be recorded as sickness and how their incorrect recording could result in discrimination claims:

Annual Leave:

Per the Working Time Regulations, annual leave is time away from work for rest, whereas sickness absence is to recover from illness. Employees can request annual leave during long-term sickness, but employees should not be asked to use annual leave in the event they are sick.

The discrimination risk: Employers who insist their staff take annual leave during sickness could place employees with a disability and pregnant employees at a disadvantage. Many medical conditions can be classed as a disability, such as asthma, back conditions, diabetes, cancer, and depression. Employees with disabilities may have higher rates of absence than their colleagues who do not, likewise, pregnant women may also be more likely to have absence from work due to pregnancy-related sickness. If they are forced to use annual leave to cover their absences, this would be substandard sickness absence management and could place them at a disadvantage when compared to colleagues who are not pregnant.

Unpaid Authorised Leave: 

Unpaid authorised leave, for example, time off to attend appointments such as dental, physio, child vaccinations, etc. Appointments can’t always be arranged outside working hours, and employers should be flexible when accommodating requests for time off, especially if they are medical appointments, but this time off is not sickness absence.

The discrimination risk: Employees who require time off in their working hours to attend medical appointments are not sick or on annual leave. As with the point above, insisting employees use annual leave for this purpose can place them at a detriment. Refusing time off during working hours when an employee needs to attend a medical appointment for the management of a condition that may be a disability is not only unreasonable but can also be discriminatory, especially if non-disabled employees are permitted time off for appointments.

Please Note: Employers can request evidence of an appointment as part of their procedure for managing employee sickness and absence.

Sickness Of A Dependant:

Sickness of a dependant such as a child or other relative. This should be recorded as time off for dependants. It is usually due to an emergency and is also unpaid unless the contract of employment states otherwise. Time off for dependants is a statutory right and employers should not insist employees use annual leave for this reason.

Important: With effect from April 2024, employees can also request Carer’s Leave, please refer to our article on Carer’s Leave here.

The discrimination risk: Employees should not be subjected to less favourable treatment due to having children or other dependant family members. Employers risk discrimination claims when managing sick leave and absence if they ask employees to use annual leave to cover time off due to dependants or deny the right to carer’s leave. The same applies if leave such as this is recorded as sickness absence and the employee is then subjected to further detriment such as disciplinary action or dismissal owing to having too much time off sick. Recording sickness absence inaccurately can place the employer at risk of discrimination but will also paint an inaccurate picture of the levels of absence across the business, which in turn can be very costly.

Sickness and Absence Management: Employer Q&A:

Question: What if an employee asks to use annual leave to cover an appointment or the odd day of sickness because they can’t afford the loss of pay?

Answer: An employee may ask for annual leave and use the time off for an appointment—that is up to them, and employees don’t have to tell their employer why they are taking annual leave. If an employee asks to take annual leave to cover sickness, employers can use their discretion in some circumstances and agree to this. Still, they should avoid this becoming a regular practice.

2. Disciplinary Proceedings

Employers can use their disciplinary procedures when managing sickness absences in the workplace. Perhaps there are patterns of absence occurring on Mondays and Fridays, following football fixtures, bank holidays or the absence levels are having a detrimental impact on the running of the business. However, there are circumstances when disciplinary action is not appropriate when dealing with employee sickness and absence.

Sickness and Absence Management: Disability-Related Absence 

If an employee has a disability, any time off work due to that disability should not be taken into account when carrying out disciplinary action. The key thing to remember when taking disciplinary action is that it is intended to improve the employee’s conduct. Where sickness absence occurs due to a medical condition that the employee cannot control, the disciplinary process will be purely punitive. This means that the employee with the disability who has been given a written warning for their absence cannot ‘heed’ that warning in comparison to a colleague who doesn’t have any disabilities, who has perhaps been disciplined for their seventh consecutive Monday morning headache. 

The discrimination risk: This amounts to less favourable treatment towards the employee with a disability and where they are eventually dismissed following a succession of disciplinary warnings for poor attendance, their dismissal would be linked directly to their disability which could give rise to a claim for unfair dismissal and disability discrimination.

If an employee with a disability is having extensive time off work or has been absent long-term, there are steps the employer can take to manage this via the medical capability route. If you are in this situation, it is important to contact the advice line before taking action.

Sickness and Absence Management: Pregnancy-Related Absence 

As above, an employee who is pregnant cannot control how their pregnancy will affect them and many pregnancy-related medical conditions can arise that may keep your employee away from work. The key point to remember here is that pregnancy is temporary, so again, to take disciplinary action against someone pregnant due to pregnancy-related absence will be a wasted endeavour, that also places women at a very obvious disadvantage. 

The discrimination risk: Therefore, disciplinary action under these circumstances has the potential to be discriminatory on the grounds of sex as well as pregnancy & maternity. In addition, a pregnant employee dismissed due to pregnancy-related absence could also consider herself automatically unfairly dismissed —- even if she has only worked for you for a short while.

Please see our article on automatic unfair dismissal here.

Important:

Please note: Where attendance is being used as part of selection criteria during redundancy proceedings, any absence linked to disability or pregnancy must not be included in the absence figures you intend to use. Otherwise, you risk an employee’s redundancy selection and subsequent dismissal being linked to their disability or pregnancy.

1. Keep accurate absence records, including the reasons for the absence.
2. Return-to-work interviews: Even if the employee has been absent for one day, return-to-work interviews are crucial in sickness absence management for tackling high absence levels – —return to work forms are available from Avensure
3. Short-term/general absences that are not related to disability or pregnancy can be managed through the disciplinary procedure. Our experts in managing sick leave in the workplace can advise you on this.
4. Keeping in touch through welfare meetings: When an employee is absent, especially if they are absent long-term, it is important to keep in regular contact. This is not harassment; it is part of sickness absence management and your duty of care and can make a real difference to absence levels.
5. Medical capability: If an employee is absent long-term, contact Avensure for advice on commencing the medical capability procedure. This is a means of establishing if the employee is going to be able to return to work in the foreseeable future and/or sustain regular attendance at work where their medical condition results in frequent absences. This is achieved via obtaining medical reports and/or referrals to occupational health.

It’s important that employers do not put pressure on employees to return to work when they are not well enough, or if it is unsafe for them to do so.

If you are experiencing problems due to high levels of general absence, persistent absence, or someone is on long-term sick—- don’t delay, call Avensure at the earliest opportunity concerning compliant sickness absence management.

 For more information and to discuss your specific needs, simply click here: Avensure Contact!