Exercises in short term and long term sickness absence Pauline Wilson and Andrew Macmillan 6 November 2008

1. Exercises in short term and long term sickness absencePauline Wilson and Andrew Macmillan6 November 2008

2. Objectives…. • How to deal more confidently with issues • What procedures must be followed • What pitfalls to avoid

3. Do you have an absence problem?

4. Step 1 collate information • Employee’s name • where they can be contacted • date of the first day of absence • cause of absence • whether the injury or illness is considered to be work-related • working days absent (updated regularly) • date the employee was last contacted and the outcome • expected length of absence, if known • return-to-work date • type injury or illness – short-term, acute, musculo-skeletal, stress related • long-term or chronic illness

5. But beware! Data protection! • Data Protection Act 1998 • Covers collection, use and storage of information about workers. • Staff should know what information about their health is being collected and why. • Keep information about workers’ health in a secure place • Assessment of fitness for work should normally be left to a suitably qualified health professional • Managers should not have access to more information about a worker’s health than is necessary. In most cases this can be limited to whether they are fit to work or not.

6. Step 2 review the information collected • How often are individuals absent and why? • Are there any problem areas within teams, departments or locations? • What is the balance between short term recurrent absence and long term absence? • Is a small part of the workforce responsible for a large part of the overall absence? • Are there any patterns of absence? • Don’t rely solely on statistics - follow up by talking to managers and staff

7. Step 3 consider the potential causes of absence • Medical factors • Injuries at work • Lifestyle factors • Persistent or recurrent conditions • Family, carer or other domestic commitments • Travel difficulties • Workload and stress • Organisation and team size • Company sick pay • Organisational culture or climate.

8. So how do you develop an absence strategy? Start with an absence policy which includes; • the expected standards of attendance • management commitment • procedures for managing absence • procedures for investigating and managing ‘problem’ absence.

9. Support the policy with other initiatives.. • Rigorous monitoring • Appraisals • Incentives? • Sick pay • Flexible working? • Occupational health

10. Managing short term absence “ in order to show both the employee concerned, and other employees, that absence is regarded as a serious matter and may result in dismissal, it is very important that persistent absence is dealt with promptly, firmly and consistently” ACAS

11. Measures commonly used • Notification procedure • Absence ‘trigger’ points • Return-to-work interviews • Attendance bonuses • First day medical certificate

12. The Bradford Factor S X S X D = Bradford points score • S = number of occasions of absence • D = total number of days absence • Over last 52 weeks (commonly)

13. S X S X D = Bradford points score • 1 absence of 14 days = 14 points (1 X 1 X 14) • 7 absences of 2 days each = 686 points (7 X 7 X 14) • 14 absences of 1 day each = 2,744 points (14 X 14 X 14)

14. Return to work interviews • Welcome back • Well enough to be at work? • Cause of the absence • Disability? • Review absence record • Patterns or areas of concern • Any underlying causes • Steps to reduce likelihood of future absence

15. When can an employer say “enough is enough”? • Nature of the illness • Likelihood of it or another illness recurring • Length of absences • Length of spaces of good health • Need of the employer for the work done by the particular employee • The impact of absences on others who work with the employee • Compliance with company policy • Assessment of the individual’s position • The extent to which the difficulty of the position has been made clear to the employee

16. General considerations…. • Consultation with the employee • Fair review of the attendance record and reasons for absence • Is there a risk of an underlying medical condition or are the symptoms and complaints transient? • If underlying condition, treat as long term illness • Is there reason to suspect the illness is not genuine?

17. Medical investigation • Is it necessary? • Yes; where risk of underlying illness • No; where no risk (i.e. transient unconnected symptoms and conditions) • If in doubt, investigate

18. What procedure needs to be followed? • Compliance with standard DDP/disciplinary procedure • Give appropriate warnings of dismissal if no improvement • Need to give opportunity to comment on medical advice and make representations • Alternative employment • Reasonable adjustments

19. Managing long term sickness Communication is the key: • Requires discussion at the start of the illness and periodically throughout • Personal contact between the employer and employee? • Consideration of the employee’s opinions • Consideration of alternative employment

20. What procedure needs to be followed? • Compliance with standard DDP/disciplinary procedure • Need to give opportunity to comment on medical advice and make representations • Consider alternative employment • Consider reasonable adjustments • Permanent Health Insurance

21. Medical investigation: • Will always be required before any dismissal • Needs all the available information before any decision to dismiss is made • Info from GP or consultant? • Conflicting medical reports • Refusal to undergo medical examination

22. Medical records • The Access to Medical Records Act • When does it apply? • What to do if consent is refused

23. The Disability Discrimination Act What is a disability? “A person has a disability if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities”

24. Impairment Physical impairment always includes: • Multiple sclerosis • HIV infection • All cancers Mental impairment can include: • Anxiety • Stress • Depression • Learning disabilities

25. Some conditions are excluded… • A tendency to set fires • A tendency to steal • A tendency to physical or sexual abuse of others • Exhibitionism • Voyeurism • Hay fever • Addiction to alcohol, nicotine or any other substance?

26. Effect • The impairment must have a substantial and adverse effect • Substantial means more than “minor” or “trivial” • Focus is on what the worker cannot do rather than what they can do • cumulative effects • Beneficial effect of medical treatment, use of prostheses or aids is disregarded

27. Long Term An impairment has a long term effect if at the date of the alleged discriminatory act, it: • Has lasted at least 12 months; or • Is likely (i.e. it is more probable than not) to last: • at least 12 months • for the rest of the workers life

28. Normal Day to Day Activities To count as a disability, the impairment must affect one of the following activities: • Mobility • Manual dexterity • Physical co-ordination • Continence • Ability to lift, carry or otherwise move everyday objects • Speech, hearing or eyesight • Memory or ability to concentrate, learn or understand • Perception of the risk of physical danger

29. Reasonable adjustments… The duty applies throughout employment to: • a provision, criterion or practice applied by or on behalf of the employer; or • any physical features of the premises • which place a disabled person at a substantial disadvantage compared with non-disabled people

30. Examples of adjustments: • Adjustments to premises • Reallocating duties • Transferring to fill an existing vacancy • Altering working hours or training • Assigning to a different place of work or training • Allowing time off for rehabilitation, assessment or treatment

31. Examples of adjustments (continued) • Appropriate training or mentoring • Acquiring or modifying equipment • Modifying instructions/reference manuals • Modifying procedures for testing or assessment • Providing a reader or interpreter • Providing supervision or other support • Extending sick pay

32. What is “reasonable” depends on… • The effectiveness of the step in preventing disadvantage • The practicability of the step • The financial and other costs • Extent of any disruption • Impact on other workers • The employer’s financial and other resources • If financial assistance available • The value of the worker’s experience and expertise • The nature of the undertaking and size/administrative resources

33. Procedural considerations • Statutory dismissal procedures • Automatic unfair dismissal • Enhanced awards • Step 1 – written invitation • Step 2 – meeting • Step 3 – right of appeal

34. What to do next…. • Collate information (beware data protection) • Look for trends or patterns • Look for common causes • Be proactive – medical cover/EAP etc • Adopt an absence policy – and tell everyone about it • Use back to work interviews

35. …and before you dismiss someone Short term absence… • Use of warnings • Medical reports? • Balance fairness to employee with business issues • Comply statutory dismissal procedures Long term absence • Medical reports • Consider reasonable adjustments • Balance fairness to employee with business issues • Comply statutory dismissal procedures

36. Andrew Macmillan HBJ Gateley Wareing City Gate East Tollhouse Hill Nottingham NG15FS AMacmillan@hbj-gw.com 0115 9838242

37. Pauline Wilson ACAS Lancaster House 10 Sherwood Rise Nottingham NG7 6JE Pwilson@acas.org.uk 0115 9246504

38. Exercises in short term and long term sickness absencePauline Wilson and Andrew Macmillan6 November 2008