Absence Management Presentation
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Transcript Absence Management Presentation
Absence Management
– the Legal Side!
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
2. Managing Absence
Short term persistent
Long term
Disability related
Unauthorised
The “sickie”
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…]
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
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 ...]
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
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
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
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]
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)
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…]
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
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…]
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
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 …]
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
Taylors Solicitors
Employment Team
Oliver McCann – Elaine Hurn
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX
Tel: 0844 8000 263
www.taylors.com