Effectively Managing Short-Term and Long-Term Sickness
What is it?: Sickness absence is a period of time a colleague takes off work because they are suffering from an illness or a condition. Other factors can contribute to sickness absence such as personal circumstances and work or organisational factors. Early intervention is key, the sooner the colleague is supported, the sooner you can put measures in place for the colleague to return to work. Colleagues can be absent from work for short periods or for longer periods. Short periods can range from 1 day, usually to 30 days (1 month), longer periods (long term sickness), is usually from 30 days onwards. Effectively managing a colleague’s sickness is a relatively easy process to follow. Not managing sickness effectively can have an impact on the individual’s wellbeing and their ability to return to the workplace.
What the law says: The Equality Act 2010 protects individuals from discrimination in the workplace and replaced all existing equality legislation. Previous to this piece of legislation, the Disability Discrimination Act 1976 protected individuals from unlawful treatment (eg discrimination, harassment or victimisation) if they had a disability or illness/condition. We will explore this act further in the Manager’s Guidance. The Health and Safety At Work Act 1974, enforces employers to take responsibility for the health and safety of their colleagues whilst at work, during their contract of employment and their return to work (this is also known as a ‘duty of care’).
What do I do first when a colleague advises they are off work due to sickness: You will need to firstly speak with the colleague to establish the reason for their absence and their likely return as soon as possible. It may be possible for the colleague to attend work, but undertake other duties – eg, if a colleague had broken their foot and was on crutches, then could undertake work which allowed them to sit down. The option of coming into work should be explored.
The first 7 days of the colleague’s sickness is called ‘Self Certification’, whereby they advice their employer of the period of sickness by completing the ‘Self Certification’ form, available from the employer and is usually completed upon the individual’s return. After 7 days, a ‘Fit Note’ is required by their Doctor. Before the colleague returns to work after a period of sickness, the Doctor would need to see the individual to ensure they are fit to return to the workplace; this may be with reasonable adjustments outlined on the returning ‘Fit Note’. A Fit Note which details the dates of the sickness will be required to be sent to their manager during their sickness period. During the absence, the colleague must engage with their manager and be in regular contact with them. If there is no known return date, then this will be every day.
I’ve heard of presenteeism, what is it?: This is where colleagues feel obligated to attend work when they are unwell which can be because they have money worries, feel pressured by management or have an already poor sickness absence level. Presenteeism can affect the productivity of those staff who report for work when unwell, it can affect the morale of the staff in the workplace and cause usually healthy colleagues to become sick.
Records: It is the Manager’s responsibility to ensure that the self-certification, fit notes, meeting notes, outcome letters and return to work notes are scanned and saved onto the colleagues’ personnel file; and to notify payroll for process of any statutory sick pay or occupational pay; in case the Manager has to take the absences through to a formal process and in the event of a claim to an employment tribunal.
A colleague is off work due to personal issues: If absence is wholly or in part related to personal issues, you should always seek to meet with the colleague to discuss measures that you may be able to put in place on a temporary basis to help, such as a change of hours, temporary amendment of duties.
How to a manage sickness relating to a Disability: The Equality Act outlines conditions and illness which are protected. If a colleague has a condition or illness that falls under the protection of this act, the colleague has the right not to be discriminated against during the course of their employment, relating to their disability. However, you need to have a good understanding of the colleague’s disability or condition and make reasonable adjustments to aid the colleague whilst they are in work and their transportation to work, if it is reasonable.
Can I dismiss a colleague that has been off work sick for a long time?: You aren’t obliged to keep a colleague’s job open indefinitely if they are sick from work for a long period (over 1 month). However, the law expects you to follow a fair procedure when managing the sickness absence. To dismiss a colleague you would need to demonstrate that the dismissal was fair and that you supported the colleague and explored all options with regards in finding ways of getting them back to work, making adjustments and a good level of communication between yourselves.
What does the Equality Act 2010 mean for my company?: The colleague needs to provide evidence that they are suffering from a disability falling under this act. The colleague’s disability must have a physical or mental impairment which has substantial and long-term adverse effect on their ability to carry out day to day activities. If a colleague is only protected from less favourable treatment throughout their employment contract, they are not protected from being dismissed from their employment.
MANAGING SHORT TERM SICKNESS ABSENCE ISSUES
Short term sickness absences are more disruptive to a business than long term absences. Your Managing Attendance policy will detail the expected levels of sickness absence during a particular period. If the absences are in excess of this and you’ve carried out a return to work meeting for each absence, it may be necessary to take this through a formal procedure to enforce the expectation of the business, and to help the colleague to improve.
If the colleague is off work, can I make them attend a meeting?: It is a requirement under the colleagues’ contract to engage with you whilst absent from work. A colleague must give you the opportunity to understand the reasons for their absence and to allow you to put measures in place to help your return. Therefore, it is beneficial for a colleague to attend a meeting.
If the colleague fails to attend the first meeting, you are required to re-schedule this meeting and in the second invite letter, colleagues will be advised that failure to attend the meeting could result you using evidence that is available to you, to make a decision in that meeting, without the hearing the colleague’s contribution and this could result in you making the decision to dismiss the colleague.
It can sometimes be a shock for a colleague to receive a letter inviting them for a meeting and they may not feel prepared, so conversations about meetings becoming formal, or there being a formal process should take place very early on in the process, when informal meetings take place. Give colleagues as much time as you can to prepare for a meeting, at least 48 hours, and allow them to bring a representative, so they feel more supportive and have open conversations with them about who they can bring, and it is more likely they will attend the meeting.
How do I prepare before the sickness review meeting?: Obtain all the sickness records, forms, eg self-certification, return to work meeting notes, fit notes and any other evidence relating to the period of absence. Be clear about the period of absence that you are going to be dealing with.
Send them a formal invite letter to the colleague giving them reasonable notice of the meeting taking place, a minimum of 48 hours. The letter must advise them of their right to be represented by a trade union representative or a work colleague.
That letter will outline the concerns regarding the sickness, and enclose or refer to any evidence that you will be discussing in the meeting, and a copy of the Managing Attendance policy should be provided. You should keep a photocopy of what you send for you to use at the meeting.
How do I conduct the meeting?: At the start of the meeting outline the issue, and reason for the meeting. Ask the colleague if they understand why they have been called to the meeting, and explain the impact the sickness absence levels is having on the business. Then review the dates and reasons for the absence and level of support provided. At every meeting always ask, is there anything else you feel that the business could do to help improve your sickness. Try and put the onus on them to identify support as well as thinking of ideas yourself. Explore whether any reasonable adjustments can be made to the role to help remove any barriers to meeting the required standards.
Once you feel you have established enough ask the colleague if they have anything further to add before you make a decision, then adjourn the meeting (take a break) and decide what action (if any) you want to take. During this time ask the colleague to wait outside, or you can go to another room. You then consider everything that has been said and make a decision about which level warning is issued (if any). Call the colleague back into the room and notify them of your decision, and their right of appeal. Make sure that you set clear realistic and measurable targets and confirm the monitoring period and the next meeting date in which you will review their sickness.
Do I have to issue all the Warnings, or can I go straight to Final Written?: When dealing with this kind of issue you should go through each warning stage, as this is what demonstrates a fair process. You can skip a stage, but you would need to demonstrate that the poor sickness levels were sufficiently serious to warrant this, and that can be difficult to prove so we generally recommend to go through each warning stage in turn, and whilst it seems like a long time it is worth the investment as it puts you in a much safer position.
What are ‘Reasonable Adjustments’?: Examples of reasonable adjustments could be; changing working times, hours, reducing or changing duties within the role, adjusting the working environment, e.g. investing in specialist equipment. But what is considered ‘reasonable’ will depend on the costs involved, the size of your business and the difference the adjustments would make to the colleague’s performance. If a colleague has a disability that is impacting their sickness levels then it is really important that you document your consideration of reasonable adjustments. Reasonable adjustments could also include a percentage uplift to the sickness levels you expect them to meet.
If this all sounds very expensive and time consuming, you may be entitled to a grant or part funding for any spend related to employing a Disabled Person, or someone with a health condition that is impacting their attendance therefore it is worth exploring what is available to you through organisations such as ‘Access to Work’.
The benefit of a warning under the Managing Attendance Policy: Written warnings will set out the nature of the issues, the change in sickness levels required, the period for which the warning will remain active, and the likely consequence if the colleague fails to meet the standards expected in that period. If the colleague doesn’t improve or achieve the standards you expect then this gives you good evidence to proceed to further formal action or potentially dismissal.
Following the formal procedure, will help to focus yours and your colleague’s mind regarding any additional support, or other tools to help ensure your staff member is profitable for your business. Certainly, if you do reach the dismissal stage by this point you should both be satisfied that you have done everything you reasonably can, which can help you to make that difficult decision to potentially dismiss.
Why do they get to appeal?: In order for the process to be considered fair the colleague needs to be able to challenge a decision that could impact their future employment. It is always best to get someone else to hear the appeal, but that is not always possible in small businesses. Therefore if there is no-one else then you need hear the appeal, and try and be as objective as possible.
How much time should I give to supporting the colleague’s sickness before we dismiss?: The Capability procedure details a three step process, it’s really important you work through each step prior to dismissing, otherwise you could be liable to a ‘Unfair dismissal’ or ‘breach of contract’ claim as you have not followed your own procedures and the minimum legal requirements.
Is there another way, what if it is the role that is causing the sickness?: If you have already provided adjustments to the role (if applicable), support and you want to retain the colleague, but within a less demanding role, you can have a conversation regarding the alternative options available within your company. However, it needs to be done sensitively and put forward as an option rather than a ‘done deal’ to avoid any litigious claim. We wouldn’t recommend suggesting a demotion without having first making the colleague aware of your concerns.
I don’t have any other roles, and I feel it would be a bit harsh to take them through the Managing Attendance policy and procedure, when I’m fairly sure they won’t meet the expected sickness levels. Can we not just agree to part company on other terms?: Sorry there is no ‘one size fits all’ answer here, as it really depends on the situation. If you feel your colleague may be open to an alternative option, you or your colleague may instigate a ‘without prejudice’ discussion in which you agree to part company on mutual terms. Usually a compensatory amount is agreed, and a Compromise or Settlement Agreement drafted. This is a complex area, therefore we’d advise before going down this route you take advice from a solicitor or Chartered HR professional, who has direct experience in the practical application of without prejudice discussions and Settlement Agreements.
MANAGING LONG TERM SICKNESS ABSENCE ISSUES
If any employee is off work due to sickness more than 4 weeks, this is usually considered as a long term sickness absence. This could be for many reasons: a condition they are suffering from or potentially an accident. Employers have a duty of care to ensure that they are supporting the individual, but regular meetings, updates, obtaining information on medical history, giving them sufficient support to help them return to work. However, each case of long terms sickness absence is likely to be treated slightly differently. If someone is suffering from the affects of diabetes, you may have more regular meetings with them against someone that is having treatment for cancer, as they are likely to be in hospital more regularly. Some absences may be relating to someone’s pregnancy or disability. There are no two cases that are the same. A fair and consistent approach is still applicable. However, I would not recommend you handle a process without getting advice from a HR Consultant, in case you fall foul of employment law. One important tip: you would need to ensure that their post remains open. You can cover the role, but you cannot lawfully dismiss the sick person and then appoint a new person into the role without following your HR processes.
Useful Tips: Don’t make assumptions regarding the reasons for poor sickness levels, always use your meetings with the colleague to gain their view of the why they aren’t meeting the standards. Start managing poor sickness as soon as you become aware of it.
- Be open and transparent, always ask ‘Is there anything affecting your sickness levels that you’ve not made me aware of?
- Careful with your comparisons, don’t compare your colleague to other colleagues, this may lead the colleague to feel resentment against others
- Respect confidentiality, sickness is an extremely personal and sensitive subject.
- Don’t forget to praise where it is due, particularly when progress is being made.
- Think outside of the box with regard to motivating your colleague and finding a solution, it may be easier than you think!
Call Tania De Bruler, HR Consultant: 01905317537 or email: email@example.com to find out how I can help your business.