Managing sickness absence Identifying & avoiding the pitfalls

Stephen JenkinsPartner, Geldards LLP

Introduction• Short-term absence• Long-term absence• Disability-related absence

Short-term sickness absence• When does absence become an issue?• Managing short-term absence• When disciplinary action is appropriate• Problematic areas

When does absence become an issue?• Managing workflow/arranging cover• Cost to the organisation• Lost or delayed output • Low morale• Reduced standard of service• Poor performance?

Managing short- term sickness absence• Communication and implementation of

policies and procedures• Awareness of what is expected• Monitoring and using sickness absence data

Reporting sickness absence• Line manager / HR should be first port of call• Named trustee contact?• Appropriate training• Obtain details of absence• Ensure ‘joined up’ and consistent approach• Remind employees of key points within policies

Other issues during sickness absence• Evidence of absence?• Appropriate contact• Paper trail• Conduct during sick leave

Return to work interviews• Immediate supervisor or manager• Consistency!• Use interview to:

− Identify cause of absence and whether steps can minimise absence

− Highlight if absence is an issue− Assess whether reasons offered are consistent with other

reliable evidence− Keep written record

Is disciplinary action appropriate?• Monitor data:

− What absence patterns are evident?− What proportion of absence is uncertified?− What are the reasons for absence?− What information has been gathered?

Is disciplinary action appropriate?• Reasonable grounds to believe employee not

genuinely ill?• Unacceptable disruption to the organisation• Trigger points

Disciplinary action – Formal meeting• Use meeting to identify the following:

− Effect of pattern of absence− Likelihood of continuation− Whether changes would assist absences− Whether absences are disability-related− Formal warning appropriate?

Disciplinary action – issues to consider• Follow fair procedure• Timescale and suggestions for improvement• Consistency• Medical opinion required?• Capability

Problematic Areas• Pregnancy-related illness• Sick pay• Holidays and sickness absence

Long-term Sickness Absence• Issues arising from long term sickness absence• Practical considerations including sick pay• How to manage long term absence• Unfair dismissal risks

What should you do when absence becomes a problem?• Impact on the organisation• Formal process required?• What do your policies and procedures say?• Trigger points• Meeting with the employee is crucial

Practical considerations• What main issues will an employer have to

consider when faced with long-term absence?− Level of contact with employee− Entitlement to sick pay− Reason for absence – is it genuine?− Causation – is the absence work related?− Holidays

Dealing with ill health incapability• Ensure that you follow a fair procedure• Likely to be time consuming and onerous• Risk of claims for:

− Unfair dismissal− Discrimination (particularly disability

discrimination)− Breach of contract

Managing long term absence - Process • Avoid letting the situation drift• First formal meeting • What issues should you explore at this stage?• Importance of a paper trail

Process continued…..• Investigate the cause and likely length of

absence• Importance of medical evidence• Discuss medical evidence with the individual• Use of warnings• Disability issues to consider?

Dismissal• When should dismissal be considered?• Information to be given to the employee• Meeting• Failure to attend – options?• Appeal

Dismissal continued…• Last resort• Up to date medical report – clear prognosis• Check previous warnings are valid• Follow a fair procedure• What notice pay should the employee

receive?

Permanent Health Insurance?• Provides benefits in the event that the employee

is unable to work by reason of illness or injury• Dismissing an employee before establishing

whether they are entitled to PHI could result in a Breach of Contract claim

• Consider the employee’s contract and the rules of the PHI policy

Ill health early retirement?• Medical report confirming that employee is

medically incapable of performing their current occupation

• Check the scheme rules• If scheme rules permit ill health retirement

then consider this option for the employee before dismissal

Recap of key points to avoid unfair dismissal liability• Investigation is key• Medical evidence• Consultation with the employee• Alternative employment options• Disability issues or not

Disability related absence

Disability and Sickness Absence• Employers need to be aware of the law on disability

discrimination as there is no qualifying period for discrimination claims and no upper limit on compensation.

• Potentially large sums of money can be awarded by the ET for injury to feelings and loss of earnings which may run over a prolonged period

• However, the median award for disability discrimination in 2011/2012 was £8,928.

Disability and Sickness Absence• Equality Act 2010 (EqA 2010) –

− duty to make reasonable adjustments where a disabled person is at a disadvantage

• NB - unfair dismissal claims and/or breach of contract claims too

When Absence becomes a Problem • Key issue – Disability and Sickness Absence• Obtaining medical evidence

a) independent specialist doctor b) occupational health expert

• Information from an independent specialist who has not previously been responsible for the employee may be seen as more reliable than a report from employee’s GP

When Absence becomes a Problem(Cont.)•Must consult with employee regarding any reasonable adjustments which could be made•Duty on employer to consider making the reasonable adjustment•Employee should be asked for his/her suggestions

Meeting and consulting with employer regarding medical evidence (cont.)• Not enough for employer to simply rely on

employee’s suggestions• No onus on employee to make suggestions• Medical evidence – safest option – on what

reasonable adjustments could be made and whether they would enable employee to return at some stage.

Meeting and consulting with employer regarding medical evidence (cont.)• Employer should ascertain whether there is

another job in the business which would be more suitable

• Any redeployment discussions should be approached sensitively as employee could be offended if seen as a criticism of their abilities or a demotion

Meeting and consulting with employer regarding medical evidence (cont.)• Reasonable adjustments may also need to be

made to the procedure itself – − Meeting at employee’s home or other convenient

location− More time to read material and prepare for the

meeting

Meeting and consulting with employer regarding medical evidence (cont.)• Employer should be reasonably flexible• No need to hold off from taking decisions

indefinitely

When is a sick employee disabled?• Physical or mental impairment and the

impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities - Section 6(1) EqA 2010

When is a sick employee disabled?• In some cases obvious where the employee is

disabled but in other cases it may be necessary and prudent to obtain a medical report in order to establish he/she is disabled and whether you need to consider making reasonable adjustments

• Best advice – in borderline cases simply proceed on basis of an assumption employee is disabled

DiscriminationIf an employee is disabled within the meaning of the EqA 2010, the employer must be careful to avoid:

Direct Discrimination Treating them less favourably because of disability than others whose material circumstances including abilities are not materially different

Discrimination arising from Disability

Treating them unfavourably because of something arising out of their disability, unless that treatment is a proportionate means of achieving a legitimate aim

Indirect Discrimination Applying a provision, criterion or practice (PCP) that puts the employee (and other persons with that disability) at a particular disadvantage, unless that PCP is a proportionate means of achieving a legitimate aim

DiscriminationReasonable Adjustments Failing to comply with a duty to make reasonable adjustments

where that would help those at a substantial disadvantage

VictimisationDismissing or subjecting an employee to detriment because they have done a ‘protected act’ such as complaining about discrimination or supporting another employee in their complaint

Harassment Unwanted conduct related to disability which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them

Duty to make reasonable adjustments • Where any PCP applied by or on behalf of an

employer, or any physical feature of the employer’s premises, or the lack of an ‘auxiliary aid’, places the disabled employee at a substantial disadvantage in comparison with persons who are not disabled, the employer must take such steps as are reasonable, in all the circumstances of the case, to avoid that disadvantage or provide the auxiliary aid.

What adjustments will be reasonable? • In theory – limitless!• The EHRC Employment Statutory Code of

Practice contains a non-exhaustive list of examples as well as factors that might be taken into account in deciding whether a particular adjustment is reasonable.

What adjustments will be reasonable? (cont.)• Examples –

− Making adjustments to premises – widening a doorway, providing a ramp, removing furniture for a wheelchair user

− Allocating some of the disabled person’s duties to another person

− Transferring a disabled person to an existing vacancy − Altering a disabled person’s hours

What adjustments will be reasonable? (cont.)• Examples –

− Assigning a disabled person to a different place of work or training

− Giving , or arranging for, training or mentoring− Requiring or modifying equipment− Allowing a disabled employee to take a period of disability leave − Modifying disciplinary or grievance procedures− Adjusting redundancy selection criteria

What adjustments will be reasonable? (cont.)• A number of principles have also developed in

case law• An employer will not breach duty to make

adjustments unless it fails to make an adjustment which is ‘reasonable’

What is reasonable? Fact Sensitive Question•Smith v Churchill’s Stairlifts Plc [2006] IRLR 41 – Court of Appeal held that the test of reasonableness is objective and to be determined by the Employment Tribunal.

What is reasonable? (Cont.) Fact Sensitive Question (cont.)•Rare example of legislation that requires ETs to substitute their own opinion for that of the employer and to decide if employer’s time/resources should be spent in a particular way.•Reasonable adjustments provision – powerful tool for Claimant

What is reasonable? (Cont.) • No objective justification defence available

under EqA 2010 for failure to make reasonable adjustments – proposed adjustments either reasonable or not

• ETs must interpret the law consistently with the Framework Directive

What is reasonable? (Cont.) • No duty to take measures that would impose a

disproportionate burden on the employer• Adjustments must be carried out in a timely

manner• Duckworth v British Airways plc ET/330470/11 – a

delay of six months in transferring a cabin crew member from long haul to short haul flights – unreasonable

Factors to be taken into account• The following factors are listed in the EHRC Code as

factors which might be taken into account when deciding what are reasonable steps for an employer to take:-− The extent to which the adjustment would have ameliorated the

disadvantage− The extent to which the adjustment was practicable − The financial and other costs of making the adjustment, and the

extent to which the step would have disrupted the employer’s activities

Factors to be taken into account (cont.)

− The financial and other resources available to the employer − The availability of external financial or other systems − The nature of the employer’s activities and the size of the

undertaking.

• EHRC code states that “ultimately the test of the ‘reasonableness’ of any step an employer may have to take is an objective one and will depend on the circumstances of the case”.

Ring v Dansk almennyttigt Boligselskab & another C- 335/11• The ECJ held that it was for national courts to decide

whether the burden on the employer is disproportionate, taking account in particular of any costs entailed, the employer’s size and financial resources and any public funding or other assistance available to the employer to comply.

Will the adjustments work?• If an adjustment would not work – it ought not to matter

how big or small the undertaking or how inexpensive the proposed step as the adjustment would be a futile gesture BUT… note well –− Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10

EAT stated that there need not be a ‘good or real prospect’ of a proposed adjustment removing a disabled employee’s disadvantage for that adjustment to be reasonable.An adjustment might be reasonable, and therefore required, where there is ‘a prospect’ that it will succeed.

Will the adjustments work? (Cont.)• It is wise for an employer to consider obtaining an

expert opinion on the likely efficacy of any proposed step

• Deciding whether a particular adjustment would overcome the disadvantage in question might require the employer to consider a package of adjustments.

Cost of adjustments• The cost of possible adjustments, together with the

employer’s financial position, will be relevant to whether the adjustments will be reasonable.

• However, the EHRC code warns that even if an adjustment has a significant cost associated with it, it may still be cost effective in overall terms – for example, compared with the cost of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make.

Cost of adjustments (cont.)• Employers should not conclude that an adjustment

needs to be ‘cost effective’ to be reasonable.• Large employers might well, given the resources, be

expected to make adjustments that are not, strictly, cost effective.

• Nevertheless, even an employer with substantial resources will not necessarily be required to make very expensive adjustments.

Cost of adjustments (cont.)• Cordell v Foreign and Commonwealth Office

UKEAT/0016/11 – the EAT gave guidance on how ETs should approach the issue of costs in reasonable adjustment cases. It said that costs, is ‘one of the central considerations in the assessment of reasonableness’ but must be weighed with other factors including the degree of benefit to the employee, other points mentioned in the EHRC code of practice as well as other factors. The other factors being (potentially):-

Cost of adjustments (cont.)− Size of any budget dedicated to reasonable adjustments− What the employer has chosen to spend in comparable

situations− what other employers are prepared to spend and − any collective agreement or other indication of what level of

expenditure is regarded as appropriate by representative organisations

• EAT stated that Tribunals must make a judgment, ultimately, ‘on the basis of what they consider right and just in their capacity as…an industrial jury’.

Effect on workforce• Tribunals should not only consider factors relating to

the disabled individual concerned, but should take account of the wider implications, such as the effect of the proposed adjustment on the organisational workforce as a whole

• Unlikely to be a valid defence to a reasonable adjustments claim that staff were obstructive or unhelpful

Employer must bear the cost • It is not reasonable for an employer to pass on the

cost of complying with a duty to make reasonable adjustments to the disabled person.

Employer’s Defence• Not under a duty to make reasonable adjustments if

it does no know or could not reasonably be expected to know that the employee has a disability and is likely to be at a substantial disadvantage compared with persons who are not disabled.

• Case Law and EHRC Code – knowledge imputed to employer

Thank You

Contact details

Stephen JenkinsDD: 029 2039 1730M: 07798 756 099E: stephen.jenkins@geldards.com