In a nutshell
Absence is either planned or unplanned. Planned absence can be, for example, holidays booked, enabling you to arrange cover for a person’s work. As a business, with planned absence you can control the amount of employees off at any one time.
Unplanned absence gives you no control over work priorities or any time to arrange cover. Unplanned absence can include things such as time off for dependants but sickness absence is the most common type of unplanned absence that you will need to deal with in terms of covering work. There is no legislation that says a person is entitled to full company sick pay, but there is legislation to allow employees Statutory Sick Pay (SSP).
Whilst there is no legal limit on the amount of sick leave an employee is entitled to, generally, as an employer, you need to monitor individuals’ absence on an ongoing basis. After seven days’ absence, an employee needs to get a ‘fit for work’ certificate. For you, as an employer, a lot of short term absences can indicate that a person has health issues which would need investigating, but short term absence makes it hard for you to plan your workforce and run the business effectively. Therefore, organisations need to put in some steps to help manage the issue.
What are the risks?
Having a process to manage absence (both planned and unplanned) allows your business to keep running effectively even when members of staff aren’t there. The legal risk to the business in dealing with absence is that you must not directly or indirectly discriminate against an employee by the actions that you take/or do not take. It is also important that you do not unfairly dismiss a person for an absence-related issue and that you follow a fair process and procedures.
Key steps to manage this issue
As sickness absence is the most common type of unplanned absence you will need to deal with as an employer this section will focus on how to manage this. You can find more information on planned absence such as holidays and family leave in the sections dealing with those issues.
1. Having an absence policy
A policy is a statement of intent (how your business intends to deal with absence) and gives clear direction to all employees, including managers, on the procedures relating to absence, and how the organisation will support absence management. So, as a business, to have a policy on absence ensures that there can be consistency and standardisation on absence reporting and absence management across the organisation, with all employees and managers knowing what action is required of them, by when and how they should take this action.
The initial paragraph of a policy usually sets out the business’s stance on absence. So for example, it is likely that you will want to make it known to your employees that it is your intention to treat everybody in the same manner, fairly and consistently. You will also want to state that you accept that there will be legitimate absences from time to time, and that you want to support these absences, whilst encouraging the importance of understanding and complying with absence procedures.
After your general statement at the beginning of your policy, you would then give the detail on all of the procedures that employees should follow. For example, most people want to know the following in terms of absence management (this list is not exhaustive and serves only to give examples):
- Who do I notify if I am absent?
- How must I notify that person?
- By what time must I notify that person?
- If I am off absent for several days, how often should I get in touch?
- When do I need to provide evidence of my absence?
- Will I get paid for my absence?
- What forms do I need to fill in?
- Do I need to see a GP?
- What is long term absence?
- What support can I expect from the business whilst I am absent?
- What will happen on my return to work?
The best way to write the remainder of your policy is to think of all the questions you would ask if you were absent from work. You might like to talk to your employees to find out what their questions might be, or you could follow the list above as a starting point.
In summary, having a policy on absence and detailing the procedures to be followed ensures fairness and consistency across the business, and shows your employees that you will support them in times of absence, but are also encouraging good work attendance.
2. Recording absence and Statutory Sick Pay (SSP)
Absence is defined as any time for which the employee does not attend work. This is not just sickness, it covers annual leave, time off for dependants, bereavement leave and other types of absence. As a business you have a legal duty to record absence for the purpose of Statutory Sick Pay (SSP). Whilst you may or may not decide to offer company sick pay above SSP, there is a legal responsibility for you to provide SSP to those employees who qualify at the time of their absence. You can use the Gov.UK website to establish if an employee qualifies for SSP and for how long you, as their employer, will need to pay SSP. You can also find the current entitlement amount on the Gov.UK website.
You will need to design a self-certificate sick form for your employees to complete for when they are absent with sickness that lasts less than seven days. The reason for this is that there is no legal requirement for a medical practitioner to provide a ‘fit for work’ certificate until the employee has been off sick from work for a period of seven consecutive days (including non-working days). As you will need to pay SSP after the four ‘waiting days’ before SSP is paid, you must gain written details from your employee of the duration and reason for their sickness that prevented them from attending at work.
After a period of four weeks, an employee’s sickness absence is generally referred to as ‘long term sickness’. At this point, you are entitled to obtain a GP medical record to confirm the likely date of the employee’s return to work, along with any adaptions required to help the employee to return to some, or all of their duties, with or without reasonable adjustments.
Alternatively, you can obtain a report from an Occupational Health provider. However, you cannot obtain any medical information about an employee without their consent. Therefore, you must obtain their written consent, and give the employee the option of 21 days to view the medical information before you can have access such information. This medical information is to help you make an informed decision on supporting your employee in returning to work. Should the employee not give their consent to access their medical information, then you would need to make any decisions based on the information you already hold.
During their absence from work, employees are entitled to continue to accrue annual leave and any contractual benefits.
Dismissing an employee for sickness can lead to a tribunal case, at which point you would have to provide your absence records as part of the bundle of evidence for the tribunal. Therefore, it is advisable not to dismiss an employee for absence without taking legal advice.
3. Return to work interviews
Return to work interviews are an important part of managing absence. If an employee has been on long term absence, they are likely to be nervous about returning to work and any potential change that may have taken place that may affect them or their role.
Whilst good practice would be for you to regularly keep in touch with long term absent employees, the return to work interview is an opportunity to discuss any further treatment or adaptations to their work, working environment or working time.
Where an employee is returning from short term absence (irrespective of number of days absent), the return to work interview allows you to establish from the employee the nature of their absence and, similar to long term absence, what help and support they might need from you.
It is important that you keep the purpose of the interview focused on support to help the employee back to work, and ensure that it is not used as an opportunity for a discussion around performance or disciplinary issues.
Conducting the interview as early as possible in the employee's work day will alleviate any concerns that the employee has about their return to work, and help them to focus on getting back into their work.
To help you focus your mind on the tone of the return to work interview, the acronym WARM is a good reminder of the approach to take, and it also helps you to follow a structured interview approach, enabling you to make notes as the interview progresses.
Below, you will find a simple diagram to reflect the WARM process.
- WELCOME the employee back to work.
- ACQUIRE information about their illness to establish what the medical reason for their absence was and whether they have recovered fully. If an employee does not want to share details of their absence then re-iterate that the interview is to establish whether the employee is fit to return to work and if any adaptations need to take place, but respect their right to privacy, should they insist, whilst confirming your duty of care for their health and safety and that of others. Ask if they visited a doctor and check if they are taking medication which might affect their work eg make them drowsy.
- RESPONSIBILITY remind the employee it is their responsibility to attend work regularly. Go through the sickness record if it is causing concern, but be careful not to turn the interview into a performance or disciplinary meeting. Keep your tone and pitch WARM but firm. Ask the employee for a medical certificate if they have one, or ask them to complete a self-certification. These are important documents that you will need to keep for your records.
- MOVE the conversation on to catching up with what the employee missed out on, and re-focusing them on their work. The return to work interview should end in a positive and affirmative manner. Remember to keep the notes of the return to work interview, as you will also need these for your records.
4. Training managers to avoid discrimination
In managing absence at work, it is important that any actions do not discriminate against employees. An example might be treating employees differently, such as taking misconduct (won’t do) action against an employee who has a disability, instead of dealing with this absence as a capability hearing (establishing whether or not an employee can do the job). Another example might be giving a final warning to a woman who has had the same amount of absence as a man, but the man receives a verbal warning.
At tribunal, any awards for discrimination are uncapped and an employee can also be awarded ‘injury to feelings’ payments. To avoid any claims of discrimination, it is important that you ensure consistency of process in disciplinary investigations, hearings and outcomes for all employees and treat everybody in the same manner throughout the full absence management process. It is also important when considering outcomes as to whether the investigation and hearing has identified any factors that would not have occurred had the person not had a protected characteristic.
5. Training managers in disciplinary and dismissal procedures
Usually, excessive absence is due to capability (can’t do the job) or conduct (won’t do the job) and so part of the absence management process serves to establish whether the absence is related to capability or conduct. Assuming that the absence is due to conduct (won’t do the job), excessive absence becomes part of poor performance. Before entering into disciplinary action, the first step might be to consider an informal route to resolving options by establishing if there are alternative routes to disciplinary action. Should you choose to go down the disciplinary route, remember that this is not a dismissal procedure (unless there is a case for gross misconduct, which will mean immediate dismissal with or without notice monies) and the outcome will not be dismissal until the final disciplinary stage has been reached.
The disciplinary route for sickness absence has three levels – verbal, first written and final written. It is not a legal requirement to go through each level but it is good practice to go through the three levels to give the employee the opportunity to improve their attendance and to meet any agreed action plan.
As your managers are the first port of call in conducting disciplinary hearings, it is important to ensure that they receive training in investigating, hearing, recording and making decisions in disciplinary situations. You can refer to the section on Discipline for more information on following a fair disciplinary process but there are some points to be aware of when training managers to conduct disciplinary hearings for absence. It is important that as the manager has been the main contact in recording and dealing with the absence of the employee, that another manager conducts the investigatory part of the disciplinary hearing. At this stage, the investigating person needs to establish all of the facts relating to the absence, such as viewing all absence records and certificates, and any doctor’s report.
Presenting their information to the manager hearing the disciplinary, the investigating person concludes their role and hands over to the disciplinary hearing manager. The employee is entitled to see all evidence from the investigatory hearing and to comment on the findings. They also have the right to be attended at the hearing by a work colleague or trade union representative. Where that representative is not available for the hearing date, then the hearing should be re-arranged to enable the representative to attend. The purpose of the disciplinary hearing is to establish whether action needs to be taken against the employee for misconduct, or whether there is a substantial reason for their absence, or indeed, further support from the business to the employee required, which might be adaptions to the hours of work, duties, or some other substantial change.
At the disciplinary hearing, it is important that the manager listens to the employee and ensures that all information is recorded. It is normal procedure to hold an adjournment to consider if all evidence has been discussed thoroughly before any decisions are made. Remember, inform the employee that they have the right to appeal within 5 working days. Any appeal needs to be heard by a different manager.
Whilst the same procedures and training are required for dismissal hearings, the difference here would be that the employee has exhausted all stages of the warnings and has not improved their absence nor met any agreed action plans. The employee needs to made aware via the letter inviting them to attend the hearing that the outcome could be dismissal, and the purpose of the hearing is to establish why the action plans have not been met and why absence continues to accrue at a level unacceptable to the organisation. If the absence is due to capability then the hearing would establish whether all adaptations and alternative work have been exhausted within the previous action plans, and that the employer has no other alternative but to dismiss the employee on the grounds of capability.
Tools and resources
Download our checklist on analysing your organisation’s absence management policy to ensure it is effective for your organisation and our checklist for keeping in contact with absent employees. You can also download our frequently asked questions on managing short term absence and long term absence.
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