On average, each employee in the UK took off 5.7 days due to sickness in 2022, according to figures published by the Office for National Statistics. The estimate of working days lost to UK employers due to sickness or injury reached a new high of 185.6 million in the year.
‘This follows a relatively stable period in the ten years up to the pandemic,’ says Kenneth Amakye, an Associate Solicitor in our employment team. ‘Sickness absence presents a host of problems for employers, including loss of productivity and increased pressure on colleagues who are covering for the absent employee. Sickness and absence need to be managed well or employers could be exposed to a number of claims such as for disability discrimination, unfair dismissal or personal injury.’
Acas recently updated their helpful guidance on sickness absence. Kenneth Amakye highlights key points for employers.
What is sickness?
The guidance starts with a reminder that employers should treat physical and mental health as equally important. When an employee is off work due to a mental health problem, the guidance suggests employers should consider if their job plays a role.
Fit notes
Previously called sick notes, fit notes can now be provided by a broader range of healthcare professionals, including pharmacists and physiotherapists along with doctors. Employees do not need to provide a fit note as evidence that they are unable to work, until they have been unwell for seven calendar days in a row or more. Fit notes can state that the employee is fit to do some but not all work tasks and can be used to make recommendations, such as making an adjustment to a workstation.
Recording absence
Information about health is given special protection under data protection laws and should be treated as highly confidential. Employers need to have processes in place to monitor absence records and to respond consistently to absences.
Records should cover the number of absences, their duration and the reasons for the absences in relation to individuals and across the organisation. This helps to spot patterns within the organisation and to identify any underlying causes. The guidance reminds employers that it may be necessary to record disability-related absence separately and treat this differently to avoid discriminating against disabled employees under the Equality Act 2010. If you think an employee’s absence could be related to a disability, even if the employee has not flagged this, please get in touch.
Trigger points
Keeping accurate absence records for all staff is essential for employers who use ‘trigger points’ in their absence management policies to help ensure fair and consistent treatment of staff under the policy.
Typically, after a certain period of absence or a specific number of incidents of absence, the employee hits a ‘trigger point’ that prompts an absence review under the policy. The review usually involves discussing their absence with the employee. The employer should consider if there is anything that can be done to support the employee, such as workplace adjustments, a phased return to work, or flexible working, and whether it is a good time to obtain occupational health advice.
Passing through the trigger points under the policy will move the employee towards the dismissal stage. As such, if some or all of the absence is related to disability, it may be reasonable to adjust the trigger points or to discount some or all of the disability-related absence. We can help you ensure you comply with the requirements of the Equality Act 2010 in relation to disabled employees.
Reducing sickness
The Acas guidance suggests how employers can create a supportive work environment and culture that can help keep absence rates down. This includes ensuring staff take breaks and holidays and managers are trained to spot employees with a poor work-life balance. Employees should feel confident that if they raise concerns, for example about workload, they will be taken seriously and offered support.
Return to work meetings
These play an important role in picking up any underlying causes of absence and successfully bringing the employee back to work. There is no need for the meeting to be overly formal, but it should be held in a private setting and a note should be kept. Return to work meetings are an opportunity to check that the employee is well enough to be working. The guidance emphasises the importance of checking this to combat the effect of ‘presenteeism’ where employees continue to work even when they are unwell. The manager should check any fit notes to ensure any recommendations have been picked up and, where relevant, discuss if the employee needs any support or adjustments.
Homeworking and presenteeism
Presenteeism has become more common with homeworking. The guidance points out the negative effects of presenteeism including employees taking longer to recover from illness. To combat presenteeism, employers should foster a culture in which employees do not feel pressurised to work when they are unwell. Expectations should be the same whether employees are working from home or in an office. Employers may even have to tell an employee that they are not well enough to work. If the employee disagrees and wants to carry on working, please speak to us as you may still have to pay them their usual pay.
Dismissal and policies
Ultimately it may be possible for an employer to fairly dismiss an employee on long-term sickness absence or who has persistent short-term absence. To minimise the risk of a claim, it is crucial that employers carefully follow a fair process and address any potential disability issues. Having a clear and effective absence management policy, which is consistently applied, is the key to this. At all times, managers also need to act sensitively and respond to the individual’s specific circumstances.
How we can help
Absence management can be time consuming and challenging for managers. We can put you on a sound footing with a suitable policy and guide you through the process, if necessary.
For further information, please contact Kenneth Amakye in our employment team on 01634811444 or email kenneth.amakye@stephens-son.co.uk. Stephens & Son has offices in Chatham, Maidstone, Gravesend, Tonbridge and Tenterden.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.