Assistant Solicitor Curtis Law LLP
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Legal Insight: Health matters part 2 - Dealing with 'problem absences'

26th Apr 2012
Assistant Solicitor Curtis Law LLP
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In the first instalment of this three-part guide to managing sickness absence, we considered both the importance of developing a good policy and how to manage sickness absence on a day-to-day basis. 

And in this second article, it will become all too clear exactly how important these initial stages are when you are presented with ‘problem absences’: that is, persistent short-term absence, suspected non-genuine absences such as ‘Monday-itis’ and long-term absence.   1. Dealing with persistent short-term absence   To try and tackle persistent short-term absence, it is important to make it clear to all employees that your sickness policy is of primary importance to the business.   Reiterating the company’s policy and procedures regularly and making it a regular feature of news updates and other correspondence with staff will reinforce the fact that it is considered a significant issue and is something that you are keen to monitor and deal with effectively.    Making personnel aware of general levels of absence across the business will also help them to put their own absence record into context and may make them realise that regular absences are unacceptable and unusual.  It is vital to understand which particular problems your business faces before you try to tackle them. As a result, accurate records are crucial in order to assess what is going on.    It may be that a small number of people are responsible for a high proportion of your total absence record, but you won’t know if this is true or not unless you keep accurate records.   You will also be unable to monitor the types of absences that occur or check your absence levels against averages elsewhere in your sector. Reports to this end are published regularly by the Chartered Institute of Personnel Development and the Confederation of British Industry.   Bear in mind that these comparisons serve as an indication only and that small companies may have lower levels of absence than larger businesses. Such research does act as a good starting point, however.   Another consideration in this context, however, is monitoring which areas of the business show the highest absence levels. Evaluate what the possible causes of such absence may be - for example, stress, poor management or the type of work involved. The sooner that reasons are identified, the sooner you can address the problem and get people back to work.   To this end, you may also wish to conduct interviews with managers and hold meetings with employees in order to find out where any potential problems lie.   Group sessions with staff could involve brainstorming the most common causes of absence, for instance, but such discussions may also help to highlight matters that you are unaware of such as problematic management styles.   Prevention is better than cure   Employers are increasingly taking steps in the early stages of their relationships with potential new employees in order to reduce the likelihood of costly absences.    It is perfectly reasonable to set out the standards of attendance required at this stage and to make enquiries as to whether job candidates will be able to achieve them. It is not reasonable, however, to make assumptions about individuals based on their circumstances or their personal characteristics.    More and more employers are likewise carrying out pre-employment health checks on new recruits. Although this may prove costly initially, some businesses find it beneficial in the long-run if such checks contribute to an overall understanding by staff of the importance attached to workplace attendance.    A less costly method though could be to issue questionnaires and investigate responses further if necessary. Of course, this is a sensitive area and employers must handle it carefully in order to avoid claims of discrimination, for example, by people with disabilities.    If handled sensitively, however, such activities provide a good opportunity to find out whether any additional support will be needed to enable new recruits to meet the standards of attendance required.   But this focus on attendance levels shouldn’t stop there, but should rather continue throughout their full term of employment. One option here is for organisations to consider including absence levels in their appraisals systems. The idea here is to take action rather than wait until the situation has become a serious problem.   Making absence a part of staff appraisals also gives both managers and employees the opportunity to look at the figures and discuss any potential issues before they get out of hand. If it is routine to discuss the matter with all staff members, it should be relatively unthreatening and easily dealt with.   But managers should ideally review the sickness absence situation not only with individuals, but also at the departmental level. This is because discussing overall team absence levels encourages people to think about the reasons behind them as well as possible ways to reduce them.  Conduct or capability?  Another point worth thinking about is when you last reviewed your sick pay provision. If it is unusually generous contractually, you may inadvertently be encouraging higher levels of absence than you need to.    While it is important to make provision for those who are genuinely sick, it may be a good time to evaluate your policies and make any necessary alterations. A well-drafted policy should allow for contractual sick pay to be withheld or reduced at the company’s absolute discretion.    But also consider whether it would be beneficial to allow for sick pay to be conditional on, say, receiving medical treatment or counselling in appropriate circumstances.   Example: The monitoring systems that you have put in place mean that you have now identified that Keith is starting to develop a pattern of short-term absence. He frequently takes Mondays off and every few months also takes between one and four days’ sick leave for a variety of complaints. What can you do?    Persistent absence is potentially a conduct as well as a capability matter. If Keith is taking time off unnecessarily, it is likely that he is involved in some degree of misconduct.   Alternatively, if he is suffering from genuine problems, he may have a good reason for taking the days off. The problem is that, while he is absent, he is incapable of performing his duties.   The first stage in dealing with the situation is to investigate it fully - this is where effective record-keeping is vital. Keith should then have any concerns brought to his attention in an informal interview.    The aim here is to find out whether there is anything that you can do to help. Also be careful to evaluate whether Keith is under too much workplace stress.  Behave reasonably  If there is no subsequent improvement in his behaviour following the meeting, however, consider whether you should issue a formal warning under the disciplinary or capability procedure.   If a warning is deemed necessary, it should be accompanied by a time-frame to enable Keith to show improvement as well as clear goals. He should likewise be made aware of any potential action that could be taken if things don’t get any better.    It is important to behave reasonably, however, and to give Keith the opportunity to discuss any issues that may be relevant and of which you are unaware. Early detection can save a lot of time, money and distress later on.    But do ensure that any action you take in his case is consistent with action that has been taken against other employees in the past.   If Keith initially improves his absence levels improvement within the allotted time-frame, but his attendance subsequently deteriorates again, his attendance will need to be monitored and the procedure followed again rather than jumping straight into a dismissal situation.   A further thought is ensuring that you always keep in contact with employees while they are on sick leave - but do refrain from bombarding them with calls or emails. It is important to try and strike a balance between support and harassment, particularly if there is a possibility that the illness is work-related.    2. Handling persistent or long-term absence   In cases of persistent or long-term absence, obtain medical evidence and discuss the situation with the employee concerned. Your contracts or handbook should specify when medical reports can be requested, for example if an employee has been off work for, say, six weeks.    Consider any information carefully - is there anything that could point towards a disability, for instance?    If holding formal meetings, it is recommended that you allow the employee to be accompanied by a colleague or trades union representative. Give serious thought to any requests for flexible working or adjustments that may help them improve their attendance and work more effectively.    If there is no other alternative, dismissal may be an option, but it should be the last resort. Tribunals are often very sympathetic to staff members who have been ill and will want to know that you did everything you could before dismissing them.    Where dismissal is contemplated, it will be necessary to follow the Acas Code and any other internal procedures.  While there is evidence to suggest that high absence levels may be linked to poor motivation and a lack of job satisfaction, a complete overhaul of work activities or role-restructuring may be out of the question.    An alternative may be to consider whether you can accommodate flexible working requests, however. This is because many absences that could be categorised as ‘sick leave’ are, in fact, related to domestic responsibilities.    If an employee only needs an hour or two to deal with a domestic problem, a lack of procedures to deal with it may mean that they call in sick for the whole day instead because they believe that they would be prohibited from taking any other type of leave at short notice.   Improving working conditions  Again, to tackle this situation, it is important to start with a good policy and procedures. Ensure, for instance, that there are ways for dealing promptly with requests to work part-time or flexibly.   Also evaluate whether there is scope for allowing people to work from home every so often or for permitting time off for domestic emergencies, providing that time is made up at a later date. Such measures could drastically reduce the pressure felt by staff and lead to much lower levels of ‘sickness’ absence.   Health and safety audits and screening opportunities are another option that may enable both employees and managers to address any concerns that they have before they become major problems.    Developing a stress management policy is a good place to start here as introducing initiatives to deal with the issue can save a lot of time and money in future.   Improving working conditions and having a clear support network for all staff members and managers is advisable and, where finances allow, the introduction of schemes such as telephone support lines can prove a valuable tool in reducing absence.    A growing number of companies are likewise seeing the benefits of offering health screening and access to clinics as well as sport or health centre membership. And while it may seem like a good deal of expense now, such changes can have a big impact on absence levels, helping to ensure that the business becomes a healthier and more profitable one.  Kate Watson is an assistant solicitor at legal firm, Curtis Law LLP.  The third part of this three part series will address the increasingly common problem of presenteeism.

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