How can you manage absences?

Employers faced new challenges in light of the pandemic. Some of those difficulties have continued, both in relation to COVID-19 and other unrelated absences. Employees who are absent for prolonged periods of time can cause employers uncertainty. Your businesses productivity could be reduced, or other employees may be suffering by picking up the slack of those absent.

We answer below some of the most frequent questions employers have been asking about employees who are absent due to COVID-19 and other illnesses.

Where do employers now stand in relation to COVID-19 absences?

As we now learn to live with COVID-19 it is important employers understand how to manage absences in relation to it. We are seeing more Employment Tribunal cases coming through in relation to COVID-19.

Short term COVID-19 absences can be dealt with as any other absence would through the sickness absence policy or procedure. The employee is likely to be asked to provide:

• A ‘self-certification’ for absences that are for 7 days or less. This will include the dates of the absence and a brief description of the reason for the absence.
• A fit note from a doctor for absences that exceed 7 days.

How should employers treat those suffering with long COVID-19?

A recent report by the TUC recommends that the government should classify long COVID-19 as a disability. Someone with long COVID-19 may already be considered to meet the requirements of a disability under the Equality Act 2010.

• If symptoms have a ‘substantial’ (more than minor or trivial) effect on a person’s ability to carry out normal daily activities
• Occurring ‘long-term’, a period of 12 months or more

Employers should be mindful that long COVID-19 may have a variety of symptoms, including fatigue, headaches, shortness of breath and brain fog, to name a few.

As with any absence, employers should follow their sickness absence policies and procedures for absences that are longer than short term. This is likely to include:

• Agreeing with the employee how both parties can keep in touch whilst the employee is away from work
• Discussing ways the employee can be supported on their return to work
• Referral to Occupational Health
• A phased return to work and reasonable adjustments where appropriate

Can employees with COVID-19 attend work?

As with other illnesses, there is now no legal requirement to self-isolate, an employee may decide to come to work even after a positive test. An employee is not legally required to inform their employer they have COVID-19.

To prevent an outbreak employers should make it clear what is expected of employees if they have a positive test or have symptoms. Although an employer is unable to mandate that somebody with COVID-19 stays away from work, it can be helpful to encourage home working where possible and advise employees against attending the workplace.

Employers may wish to have a policy on COVID-19 or include it within their sickness absence policy.

When might capability or disciplinary action be appropriate?

If an employee is still having prolonged periods of absences or struggling to meet the demands of their job then it may be appropriate to refer the employee (with their permission) for a further occupational health assessment to see if any reasonable adjustments could be made.

After consideration of the employees absence/performance and adjustments, if there are no appropriate adjustments or issues still persist, an employer may be able to consider capability or disciplinary action. However, we would urge caution and emphasise that each case should be considered on its own facts. An employer should have made real efforts to overcome the issues before proceeding with alternative action.

Care must be taken before any disciplinary action is brought, otherwise, for those with over two years continuous service, there would be a risk of successful unfair dismissal claims.

Can self-isolating employees be obliged to work from home?

This will depend on your contractual relationship with the employee and their state of health. If an employee is fit to work and they are not for example, having time off to care for a dependent, then employers may be able to insist they work while isolating – if in normal circumstances they can require employees to work from home.

Employers are unlikely to be able to compel employees to work from home if there is no contractual right to impose this. However, this does not mean an employee will not agree to work from home when isolating as, if not working they are only likely to be entitled to SSP (but could be entitled to contractual sick pay).

Can employers compel employees to take holiday when they are absent on sick leave?

No, you cannot make an employee take holiday when absent on sick leave. An employee may agree or wish to take paid holiday as pay will be substantially more than SSP or no pay at all.

How can we help?

Poor management of employee absence could be very costly to a business, potentially resulting in successful discrimination or dismissal claims. The key is good communication and ensuring on-going discussion and review. If you are concerned about certain employees’ absences or require more general assistance, please do get in touch.

Brachers Employment Team can offer you support and advice on how to manage employees on long term absence. If you would like more information on how we can support you handling issues and minimise the risk of successful claims, please book a free 30-minute online appointment with a lawyer from our Employment Team for an initial discussion on your needs.

This content is correct at time of publication