Guy Hollebon, Director and Head of Employment at Bevans Solicitors

In the build up to his presentation at September’s Stress Prevention & Mental Wellbeing Forum, Guy Hollebon, Director and Head of Employment at Bevans, offers insights into managing sickness absence through answering what sort of policies should we have in place, what to do when advice from the GP and Occupation Health conflict, how to know someone is covered by the Disability Discrimination Act (DDA)? and much more.

Whether it is staff taking frequent small absences or those on long term sick, managing sickness absence is a thorny issue and it is very easy to get it wrong. Mistakes can leave employers facing a variety of claims, the most common being disability discrimination, stress at work and unfair dismissal. If you are really unlucky, you can end up facing all three from one badly handled sickness absence.

This article is going to set out some general practical points about managing sickness absence and answer some frequently asked questions.

General points about managing sickness absence:

• Do not jump to conclusions. It is very easy to assume either than an employee is genuinely ill, or that they are malingering. It is important that any decisions you make are based on medical evidence, whether that is from occupational health or the employee’s GP.
• Take advice if you are unsure – whether from an HR specialist or an employment lawyer. This area of law is very complex and mistakes are often made. If you can attend a specialist training course, do so – managing sickness absence will nearly always be part of an HR professional’s/manager’s job.
• Keep good notes of all meetings and clear file notes of your thought processes and the steps you have taken. Remember to keep the notes, to type them up promptly and sign and date them.
• Always consider the individual facts of the case. Sickness absence is not a situation where one inflexible policy fits all.
• You should have clearly set out triggers for instituting sickness absence management – the triggers should take into account both the total number of days absence that year and the number of incidents of sickness absence.

What sort of policies should we have in place?

You should have sickness absence and sick pay policies. Many employers only offer statutory sick pay as an incentive for employees to return to work. In some circumstances statutory sick pay can be recouped from the government. Other employers will pay more, but for limited periods of time and only if the employee agrees to see occupational health/provide access to medical information. Some employers also choose to have employment contracts which state that the employee must see a doctor/occupational health at the request and expense of the employer.

It can also be useful to have ‘back to work interviews’ if an employee has over a certain amount of sick leave. These interviews are to ascertain what the problems are and how the employer can help. They usually take very little time and can be very effective in managing sickness absence.

Does it make a difference if we have a PHI (permanent health insurance) scheme?

Yes it does. There have been various cases which say that if an employee is lucky enough to be covered by a PHI scheme then their employer should not dismiss them purely because of their ill health absence if they would then be denied the PHI scheme benefits.

How do I know if someone is covered by the Disability Discrimination Act (DDA)?

You don’t. Whether or not someone is covered by the DDA is ultimately a question for a Tribunal. If an employee has a physical or mental condition that has lasted or is likely to last for longer than 12 months, and that has a substantial adverse effect on their day to day activities then he or she is likely to be covered by the DDA. Some progressive conditions are specifically covered, such as HIV.

Some employers choose to err on the safe side and to consider all employees on long term sick as covered by the DDA. It is always worth investigating with your employees the exact reason for their absence and getting medical evidence addressing the point of whether the DDA applies.

If someone is covered by the DDA, do I have to treat them differently?

You may need to make reasonable adjustments for an employee who is covered by the DDA. You may also need to consider more options and make more allowances for their return to work. You should also deal with any capability dismissal very carefully to minimise the risks of a disability discrimination claim.

The advice from the GP and Occupation Health conflict – what do I do?

You can rely on the occupational health advice. It is likely that the occupational health adviser has a better understanding of the employee’s role and responsibilities. Any advice given by a GP will usually rely entirely on the employee’s version of events. In cases of conflict it is worth asking the employee if occupational health can speak to the GP to come up with appropriate recommendations.

It is also worth asking an employee to take a copy of his or her job description to their GP and/or asking the employee for permission for the GP to speak directly with the employer. If the GP and Occupation Health advice are very different, it is important that you investigate why. If an employee has a rare condition it may be that neither the GP nor Occupational Health are specialist enough to advise fully on the condition and advice from a specialist may be needed.

If someone is unwell but wants to come back to work, what do I do?

Remember, you have a duty of care to the employee and to his or her colleagues. If the work environment is likely to worsen an employee’s condition then they should not be allowed to return to work unless all alternatives have been explored and the employee has clearly stated his or her wish to return despite the likely impact on their condition. If an employee’s condition is likely to make other employee’s sick, then he or she should not be in the work place.

However, it may be that an alternative role or environment can be found which will allow the employee to return and still keep both the employee and his or her colleagues safe. For example, a forklift truck driver with an injured hand may not be able to drive safely, but may be able to assist with admin duties or supervising other drivers.

What are the options if it looks like the employee isn’t going to be able to come back to their job?

It depends why the employee is unable to return. If it is a purely medical matter you should consider whether the employee would be able to do an alternative job. If the employee is covered by the DDA, you may be required to make changes to their work environment and/or to offer then an alternative job as a reasonable adjustment.

If a work situation has resulted in the employee being unable to return to work because of stress, you may want to consider mediation, or offering a change to the employee’s terms and conditions/working environment.

If it seems that the employee will not be able to return within a reasonable time frame then you may have no option but to institute proceedings to dismiss the employee on the grounds of capability.

And some last points:

• Take advice if you are unsure (Personnel, medical, legal).
• Remember that Tribunals will balance the needs of the Employer against the needs of the Employee – they are unlikely to expect an employer to indefinitely retain an employee who cannot do his or her job.
• You can never avoid claims but you can minimise the risks.
• Try to think creatively about the situation and consider alternatives such as mediation, ill health or early retirement and part time working (potentially building back up to full time). Think about what the employee can do and how you can help them to do it. In most cases, employees are keen to return to work and are very frustrated if they are unable to do so.

Further information about the author:

Guy deals with all aspects of employment law and advises both employers and senior employees on matters including, on the contentious side, claims for: unfair dismissal, redundancy, TUPE issues, breach of contract, sex, race, disability, religion and belief and age discrimination, whistle blowing and part-time worker discrimination. He has extensive experience as an Advocate representing employers and employees in the employment tribunal. Guy has developed substantial experience of appellate court work; particularly Employment Appeal Tribunal cases but also Court of Appeal cases. Guy is a specialist employment mediator and was appointed a part-time Employment Judge in August 2009.