managing sickness absence

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Post on 07-Nov-2014



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Stephen Jenkins of Geldards at the Wales Charity Law and Governance Conference 2014.


  • 1. Managing sickness absence Identifying & avoiding the pitfalls Stephen Jenkins Partner, Geldards LLP
  • 2. Introduction Short-term absence Long-term absence Disability-related absence
  • 3. Short-term sickness absence When does absence become an issue? Managing short-term absence When disciplinary action is appropriate Problematic areas
  • 4. 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?
  • 5. Managing short- term sickness absence Communication and implementation of policies and procedures Awareness of what is expected Monitoring and using sickness absence data
  • 6. 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
  • 7. Other issues during sickness absence Evidence of absence? Appropriate contact Paper trail Conduct during sick leave
  • 8. 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
  • 9. 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?
  • 10. Is disciplinary action appropriate? Reasonable grounds to believe employee not genuinely ill? Unacceptable disruption to the organisation Trigger points
  • 11. 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?
  • 12. Disciplinary action issues to consider Follow fair procedure Timescale and suggestions for improvement Consistency Medical opinion required? Capability
  • 13. Problematic Areas Pregnancy-related illness Sick pay Holidays and sickness absence
  • 14. 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
  • 15. 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
  • 16. 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
  • 17. 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
  • 18. 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
  • 19. 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?
  • 20. Dismissal When should dismissal be considered? Information to be given to the employee Meeting Failure to attend options? Appeal
  • 21. 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?
  • 22. 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 employees contract and the rules of the PHI policy
  • 23. 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
  • 24. 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
  • 25. Disability related absence
  • 26. 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.
  • 27. 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
  • 28. 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 employees GP
  • 29. 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
  • 30. Meeting and consulting with employer regarding medical evidence (cont.) Not enough for employer to simply rely on employees 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.
  • 31. 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
  • 32. Meeting and consulting with employer regarding medical evidence (cont.) Reasonable adjustments may also need to be made to the procedure itself Meeting at employees home or other convenient location More time to read material and prepare for the meeting
  • 33. Meeting and consulting with employer regarding medical evidence (cont.) Employer should be reasonably flexible No need to hold off from taking decisions indefinitely
  • 34. When is a sick employee disabled? Phy


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