Absence Management – the Legal Side!

1. Absence Management – the Legal Side!

2. 1. Statistics (CBI stats on 2010) • 190 million days lost, £17bn • Sickness absence increased in 2010, despite fit notes • Two-thirds believe fit notes not helped • 6.5 days average (8.1 public sector/5.9 private sector) • “Sickies” – 30.4m days, £2.7 bn

3. 2. Managing Absence • Short term persistent • Long term • Disability related • Unauthorised • The “sickie”

4. 3. Key Foundations • Rules and procedures • Absence management (capability) policy - reporting sickness - provision of self-certification/fit notes - return to work interviews - sick pay provisions - provision for medical examinations [cont…]

5. 4. Key Foundations (cont) - rehabilitation and EAPs - trigger mechanisms, ie. Bradford Factor or variations - procedure for handling long term and disability-related - consequences for unauthorised absences/non-genuine absence

6. 5. Managing Short Term Persistent Absences • Self-certification forms • Return to work interviews • Trigger mechanisms • Bradford factor – measure absenteeism, tackle short frequent and unplanned absences – more disruptive • Warning procedure [cont ...]

7. 6. Managing Short Term Persistent Absences (cont) • International Sports Co Ltd v. Thomson – dismissal fair as long as fair review of attendance record, chance to make representations and forewarned about dismissal if things do not improve • Watch out for underlying health condition – may change reasonableness of warning process

8. 7. Bradford Factor or Similar Trigger Mechanisms • B = (SxS) x D • B = Bradford Score • S = number of instances of absence in set period • D = number of days absence in set period • Eg. one instance of 10 days absence = 10 points / 10 instances of 1 day absences = 1000 points • Trigger points set at level where employer deems absence levels unacceptable • Take care – disability discrimination and need to make reasonable adjustments, dependant care leave

9. 8. Unauthorised and Sickies • Unauthorised – failure to follow sickness absence procedures – unless just reason = conduct issue, not capability and so adopt disciplinary process with warning • Non-genuine illness – difficult, need evidence of malingering, each case turns on its own facts, may need to get medical input where allegation of “exaggeration” – see Pacey v. Caterpillar Logistics Services (UK) Ltd 2011

10. 9. Long Term Sick – Key Principles • Regular contact (ACAS and CIPD) – sympathetic approach • Rehabilitation and return to work strategies (CIPD) • Medical investigation (ACAS and CIPD) – occupational health, not GPs • Consider AMRA 1988 – “medical report” defined as one prepared by medical practitioner who is or has been responsible for the clinical care of employee [cont]

11. 10. Long Term Sick – Key Principles (cont) • Be clear about sick pay arrangements (ACAS) • Consultation (ACAS and CIPD) • Return to work plans including adjustments and alternative work (ACAS and CIPD) • Forewarning that employment is at risk (ACAS)

12. 11. Fair Dismissal • “Capability” – fair reason • Reasonableness • Adopt key principles of consultation, investigation and alternatives • Nature, length and effect of illness • Cause of illness – RBS v. McAdie 2008 – “irrelevant” but may need to go extra mile • Length of service – more tolerance to hardworking/longer serving employees (Clarke v. Pickering Kenyon 1993) [cont…]

13. 12. Fair Dismissal (cont) • Importance of the job/feasibility of temporary replacements • Effect on other employees, output and sales • Size of organisation and administrative resources • Health and safety considerations • Sick pay – arrangements do not indicate the amount of sickness absence employee entitled to • Entitlement to permanent health insurance – implied right not to be dismissed

14. 13. Disabilities • Equality Act 2010 • Physical or mental, long term and substantial effect on ability to carry out day to day activities • Removed need that impairment must affect one or more specified capacities – easier to satisfy definition • Long term – 12 months or “likely” to be 12 months • “Likely” = “could well happen” (SCA Packaging Ltd v. Boyle 2009) • NB – includes fluctuating and recurring conditions [cont…]

15. 14. Disabilities (cont) • Long term absence dismissals run the risk of indirect discrimination, discrimination arising from a disability and a failure to make reasonable adjustments • Defence to indirect and discrimination arising from a disability = objective justification • Likely that the defence of objective justification will overlap with obligation to make reasonable adjustments

16. 15. Disability Discrimination • Dismissal may be fair but breach of EA 2010 • Separate considerations • Disability discrimination does not prevent an employer dismissing an employee absent due to ill health which is a disability (Royal Liverpool Children’s NHS Trust v. Dunsby 2006) – just need to justify dismissal [cont …]

17. 16. Disability Discrimination (cont) • Detailed consideration of alternatives and reasonable adjustments – need occupational health input and consult with employee • “Adjustment(s)” must be effective to remove disadvantage • Sick pay – O’Hanlon v. Commissioners for HMRC 2007

18. Taylors Solicitors Employment Team Oliver McCann – Elaine Hurn Rawlings HouseExchange StreetBLACKBURNBB1 7JN Ninth Floor 80 Mosley Street MANCHESTER M2 3FX Tel: 0844 8000 263 www.taylors.com