Brachers Bitesize webinar: How to Manage Sickness Absence

Statistics

Sickness absence in the workplace can have a huge impact on businesses and appears to be on the rise. Data from the Office for National Statistics (ONS) showed that in 2021 absence rates were 2.2%, a rate which was last seen in 2010. The release date for 2022 data is yet to be announced.

A labour force survey estimated that 36.8 million working days were lost in 2021/2022 due to work-related ill health and non-fatal workplace injuries. Of those 36.8 million, 6 million related to non-fatal workplace injuries and 30.8 million to work-related ill health.

Negative impacts of sickness absence

Some of the negative impacts of sickness absence in the workplace could include:

• extra cost
• reduction in customer satisfaction
• having to find, train and pay for temporary cover, especially in relation to long-term sickness absence
• loss of morale and/or motivation from other employees
• reduced productivity
• increased sickness absence across the workforce

Statements for fitness for work

A Statement for Fitness for Work, otherwise known as fit notes, are used to provide evidence of an employee’s fitness for work. An employee may be assessed as ‘not fit to work’ or ‘may be fit to work taking account of advice which could include a phased return, amended duties, altered hours or workplace adaptations.

The fit note will confirm the period of time it covers – and the dates are inclusive – so a fit note dated 2 April to 10 April will no longer apply from 11 April. It will also state whether the employee’s health condition is expected to affect them after the current fit note expires by confirming whether the healthcare professional will or will not need to assess the employee’s fitness for work again at the end of the current fit note period.

Fit notes can be issued by nurses, occupational therapists, pharmacists and physiotherapists in addition to doctors. Healthcare professionals do not usually issue fit notes during the first 7 calendar days of sickness absence as employees can self-certify for this time.

Statutory sick pay

To be eligible for Statutory Sick Pay (SSP) a person must:

• be classed as an employee and have done some work for the employer
• earn an average of at least £123 per week before tax
• have been ill for at least 4 days in a row

SSP can be paid for up to 28 weeks of the year and the standard rate has just been increased from £99.35 a week to £109.40 (effective from 6 April 2023). An employee cannot be paid any less than the statutory amount but can get more if a company sick pay scheme is offered.

Problem Areas

Pregnancy-related illness

Dismissing an employee or subjecting her to any detriment as a result of a pregnancy or maternity-related illness occurring during her ‘protected period’ is unlawful. The ‘protected period’ is covered by section 18(6) of the Equality Act 2010 and starts when a woman’s pregnancy begins and ends:

• if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; or
• if she does not have that right, at the end of the period of two weeks, beginning with the end of the pregnancy.

It is very important that if you have a policy of initiating a sickness absence procedure that may lead to dismissal of an employee when they reach a certain level of aggregated sickness absence, you do not take into account any absence related to pregnancy or maternity that falls within that protected period.

Elective or cosmetic surgery

An employee may choose to take annual leave if their employer does not offer full sick pay, however, if they are undergoing the procedure on medical advice, they may be less inclined and want to take sick leave instead. There is no specific authority on the point, so it will remain a matter for the employer’s discretion.

A key consideration will be to establish whether the surgery or procedure is purely elective or cosmetic rather than for medical purposes. This isn’t always as simple as it sounds. For example, you might assume that breast enhancement surgery is purely cosmetic, but what if that surgery was for breast reconstruction after cancer treatment. It could be very easy to get it wrong and so it is always best to ascertain the true position and investigate the matter further, obtaining medical evidence if necessary.

There are a few cases where employers have got it wrong which resulted in unfair dismissal – Fry v Russell Williams Textiles Ltd and Mutter v Turning Point Scotland.

Returning to work early

Employees can return to work before the expiry of their fit note, however, the employer should always take steps to ensure it is appropriate and that the return will not exacerbate the employee’s illness, slow their recovery or put other employees at risk.

You should keep a record of the discussion with the employee and reasons for the decision (whether that be to allow them to return or not). You should also consider carrying out a risk assessment before allowing the employee back to work; this may be required under the terms of its employer’s liability insurance. If you are genuinely unsure whether or not it would be appropriate for the employee to return, you could ask them to return to the healthcare professional who may provide a fit note indicating that the employee ‘may be fit to work’ with certain adjustments.

Annual leave and sickness absence

An employee who is on long-term sickness absence may wish to book a period of annual leave in order to receive full pay for that period, for example if they have exhausted all entitlement to company sick pay or are receiving only statutory sick pay.

It would usually be in an employer’s interests to agree to an employee’s request to take annual leave, to avoid them accruing significant amounts of leave while on sickness absence. If they refuse the request, the employer would have to allow the employee to take the accrued annual leave on their return to work (even if this means carrying it over to the next leave year), or pay the employee the accrued holiday pay on termination of employment.

Malingering

The term ‘malingerer’ refers to an employee who is absent and gives illness or injury as the reason for absence, but the employer:

• does not believe the employee’s explanation for the absence
• discovers later that the employee was not, in fact, ill or injured but was on holiday, and/or;
• does not consider that the illness is serious enough to justify absence from work

If you suspect an employee’s absence is not genuine, we recommend that you do not act rashly on your suspicions but gather proper evidence before embarking on any action. If an employee is faking illness to take time off work, the issue is one of conduct. Employers should:

• ensure they carry out reasonable investigations
• genuinely and reasonably believe there has been dishonesty
• conduct a thorough investigation and not make any assumptions, before dismissing an employee for lying about or exaggerating an illness or injury in order to benefit from sick absence

Top tips for managing sickness absence

Sickness absence cannot always be avoided, however, there are several things that can be done to help manage it. Here are our top tips for employers:

• Ensure you have an up-to-date sickness absence policy. The policy should ideally set out expectations for attendance, reporting procedures, details of sick pay and potential consequences for an unsatisfactory attendance record.
• Look at proactive measures to improve staff wellbeing. For example, publicising any employee assistance programme (EAP), making sure staff are aware of any staff benefits such as discounted medical insurance or gym membership, and consider workshops in managing stress or promoting a healthy lifestyle.
• Monitor absence levels and keep accurate records of all sickness absence. This will help you notice any patterns with an employee and gives you factual data that can presented to them for explanation. Accurate records are also needed if you have a sickness absence policy that provides a ‘trigger point’ for investigating an individual’s absence pattern or duration.
• Consistently conduct return to work interviews. For those who are genuinely unwell the interviews can help prevent issues escalating and for those where the validity of the illness is more dubious, a requirement to explain their absence often acts as an effective deterrent.
• Manage sickness absence based on the circumstances. Support for an employee to get well and return to work can, and should, be tailored to reflect the induvial and the health issues involved. However, ensure all employees are treated fairly and not ‘singled out’.
• Remember that if you have a policy of initiating a sickness absence procedure that may lead to dismissal of an employee when they reach a certain level of aggregated sickness absence, you do not take into account any absence related to pregnancy or maternity that falls within the ‘protected period’.
• Keep in touch with employees and focus on supporting a return to work. Maintaining reasonable contact with an employee is not harassment and regular sickness review meetings can be very helpful. They can help establish what support could be made available which might help a return to work and can also keep employees in touch with what is happening at work, which may reduce any anxiety about a return.
• Ask for medical evidence in the form of a report from a GP or occupational health professional where required. Occupational health should be able to advise on any disabilities affecting attendance or performance in the role and where this is the case, you have legal duty to make reasonable adjustments (see below for further detail). Medical evidence and/or an occupational health report can also help determine whether there is any underlying health condition.

Potential claims

There are a number of different claims that might arise out of an employee’s sickness or injury. It will depend on whether:

• the employer caused, or was responsible for the sickness or injury
• the employee is classed as disabled under the Equality Act 2010
• the sickness is pregnancy-related; and
• the employer ultimately decides to dismiss the employee by reason of their incapacity or conduct in relation to their sickness absence
• the employer caused or was responsible for the sickness or injury. This could amount to a personal injury claim.

Qualifying employees, i.e. those with over 2 years continuous service, have the right not to be unfairly dismissed (sections 94 and 108 Employment Rights Act 1996). An employer can defend a claim of unfair dismissal successfully if they can establish that the reason for the dismissal is one of five potentially fair reasons (which includes capability, conduct and some other substantial reason (SOSR) and the tribunal concludes that the dismissal for the reason was fair in all the circumstances.

Capability (section 98(2)(a) ERA 1996) – A potentially fair reason for dismissal where it relates to the capability of the employee for performing work of the kind for which he/she was employed to do. Capability here means an employee’s capability assessed by reference to skill, aptitude, health or any other physical or mental quality (section 98(3)(a) ERA 1996).

Conduct (section 98(2)(b) ERA 1996) – Persistent unauthorised absences may give rise to a conduct dismissal if no valid reason is given for the absence or the employer’s sickness reporting procedure is breached. Malingering may also give rise to a dismissal due to conduct.

SOSR (section 98(1)(b) ERA 1996) – Short-term intermittent absences, even if for genuine ill-health reasons, could give rise to an SOSR dismissal if they have a significant detrimental impact on the employer’s business and the employee’s performance.

The following factors are likely to be relevant when considering the reasonableness of the decision to dismiss.

• The nature of the employee’s illness.
• The prospects of the employee returning to work and the likelihood of the recurrence of the illness.
• The need for the employer to have someone doing the work.
• The effect of the absences on the rest of the workforce.
• The extent to which the employee was made aware of the position.
• The employee’s length of service.

Disability discrimination

Disability is one of nine ‘protected characteristics’. There is no minimum qualifying period for discrimination claims and there is no upper limit on compensation, which will usually include an award for injury to feelings and may anticipate a prolonged period out of the workplace.

A person is disabled for discrimination law purposes if they have a 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) Equality Act 2010).

If any employee is disabled within the meaning of the Equality Act 2010, an employer must be careful to avoid the following.

• 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.
• Reasonable adjustments – failing to comply with a duty to make reasonable adjustments where these would help overcome a substantial disadvantage. This duty is unique to the protected characteristic of disability.
• Victimisation – dismissing 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.

In theory, the scope of possible reasonable adjustments is almost limitless. The Equality and Human Rights Commission (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 in a given case.

Further support

If you require any further guidance or support on the issues covered in this article, please get in touch with our Employment team today.