Absence management: Legal implications
Section 8 of the Personnel Today Management Resources one stop guide to absence management offers in-depth guidance on the range of legal compliance issues relevant to effective absence management. Other sections.
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Effective absence management needs to be based on good general management practice, which in turn needs to ensure compliance with relevant legislation and statutory codes.
In asserting the employee's obligations to attend work satisfactorily - and the rights of the employer to take appropriate action if such attendance is not achieved - the starting point is the employee's contract of employment. This determines the respective rights and obligations of employer and employee.
The contract may include both express terms (such as those explicitly stated and agreed by the two parties, including referenced rules, procedures or collective agreements) and implied terms (such as those that may be reasonably inferred by the parties on the basis of statute, common law or custom and practice).
Contract particulars
Although the contract does not have to be in writing, the Employment Rights Act 1996 requires the employer to provide written particulars of specified terms and conditions of employment within two months of the start of continuous employment. In respect of absence management, written particulars must be provided of:
Terms and conditions relating to sickness incapacity, including provision for sick pay, including details of occupational sick pay where provided (though there is no legal obligation to provide occupational sick pay additional to statutory sick pay)
Details of any disciplinary procedures applying to employees, including details of the individuals to whom employees can appeal if dissatisfied with any disciplinary decision.
Both of these elements can potentially contribute to the management of absence. There is no legal obligation to include written details of any absence management policies or procedures, but there is benefit in including details of required attendance standards and relevant absence policies and procedures in the written statement of employment terms.
Many employers are now including specific reference to absence policies - including expected standards of attendance - in their written statements to reinforce their ability to take formal action if employees fail to meet these standards.
Contractual provisions
At the same time, it is critical that the organisation's contractual provisions, including both the written statement of terms and conditions and any associated agreements, rules or procedures, are compliant both with relevant employment legislation and with the Acas Code of Practice on Disciplinary Practice and Procedures in Employment.
Specifically, under the Employment Rights Act, eligible employees have the right not to be dismissed unfairly. In practice, dismissal is likely to be judged unfair if the employer has failed to establish a fair reason for dismissal or if the employer has failed to apply the specified procedures or to act reasonably.
In taking any action in respect of absence, employers need to recognise that if such action should ultimately lead to dismissal, they should be able to demonstrate that:
They have applied the specified procedures appropriately and consistently
They have behaved reasonably, taking account of all the circumstances of the case
They have established a fair reason for dismissing the employee. Most commonly, in respect of long-term absence, the dismissal will be on the grounds of 'capability'.
The first point will be largely a matter of fact, although many tribunal cases have been lost primarily because the employer failed to apply the stated procedures appropriately.
With regard to absence management, it is critical that absence procedures are defined as fully, precisely and clearly as possible. Managers have to know how they should be handled and employees need to be aware of how they should be treated.
It is also essential that any relevant procedures - notably, the specified procedures for handling disciplinary matters - comply with the standards laid down in the Acas Code of Practice. This is considered in more detail further in this section.
The remaining two points are less definitive and will, to some extent, be a matter of judgement. In assessing whether a dismissal is fair, tribunals are not bound by precedent, and will take into account all the relevant circumstances, including factors such as the relative size or resources of the organisation and the background and circumstances of the employee.
As we discussed in Section 7 , a decision to dismiss an absent employee on grounds of capability should take account, not only of the individual's condition and prognosis, but also whether there is any reasonable scope to offer suitable alternative employment.
In a small organisation, the potential to provide alternative employment may be very limited and dismissal may therefore be the only reasonable option. In a much larger organisation, the opportunity for alternative employment may be significantly greater and, in dismissing the employee, the employer would need to be confident that all potential options had been considered.
Although it isn't possible to provide a definitive statement of what would (or would not) be considered reasonable in all cases, some of the factors that would normally be considered are highlighted below.
The non-statutory Acas handbook, Discipline at Work, provides useful guidelines on the key issues to be taken into account in handling long-term absence. Effective handling of long-term absence will normally include the following elements:
Periodic contact with the employee at appropriate intervals during the period of absence, with the employee also expected to make regular contact
Clear and full communication to the employee if their employment is at risk
At the point where it is no longer possible to keep the individual's job open or provide alternative employment, a clear communication that dismissal is likely
Where the individual is dismissed, provision of full notice and notification of any right to appeal. It would normally be expected that the employer had visited the employee before dismissal. Dismissal should not be carried out by letter or telephone.
Two-way consultation
It is important that the consultation is genuinely two-way and that the employer encourages the employee to give their own views of the case and to raise any issues that might affect the circumstances of the case - for instance, if there is any possibility of remedial action which might improve the employee's condition.
The employer should be able to demonstrate that due weight has been given to the employee's view - for example, about the likelihood of returning to work - alongside all other available evidence. It is also important that the consultation recognises that, in this kind of case, the employee is not normally at fault - there is no implication of misconduct.
Appropriate medical investigation should include:
Seeking advice and information from the employee's GP or other medical specialist
Obtaining advice and information from the employer's own occupational health (OH) adviser
If appropriate, seeking more specialist advice or information from an independent third-party expert.
It is important to note that employees have significant rights in relation to the provision of medical reports resulting from the Access to Medical Reports Act (1988) and the Access to Health Records Act (1990).
In broad terms, these relate to reports provided by medical practitioners responsible for the clinical care of the individual, and so do not normally cover reports produced by OH advisers or other experts commissioned by the employer.
If you wish to obtain a medical report from the employee's GP or other adviser, you must advise the employee in writing and obtain the employee's written permission, which should be sent to the GP with the request.
You should also inform the individual of their rights, which include the right to:
Withhold consent either to the application being made or to the report being supplied
State that they wish to have access to the report
See and agree the report prior to its being supplied
Request amendments to the report. Or, if the GP refuses to amend the report, to append the employee's own comments.
Medical advice
In approaching the GP or other physician, the employer should also provide information about the nature of the employee's work, the reason for the request, and any risks to the employee's future employment.
In general, the employer should seek to obtain all reasonably available medical advice, and should not simply rely on the judgement either of the individual's GP or of the employer's own health adviser.
If the advisers provide conflicting opinions, then in deciding to dismiss an employee, the employer would be expected to take account of all views and to be able to demonstrate reasonable grounds for the final decision. In such cases, it may also be appropriate to seek a third independent opinion.
As indicated above, the employee has the right to refuse permission to obtain a medical report from their own medical adviser. In such cases, so long as the employer can demonstrate that all reasonable steps have been taken to obtain the employee's co-operation, it will generally be considered reasonable for the employer to make a decision on the basis of the medical evidence that is available.
In assessing the medical evidence, the key questions are usually likely to be:
Is the employee likely to make a full recovery, and if so, what is the timescale?
Is it reasonable for the employer to keep the individual's job open for this period? (This will clearly depend on factors such as the size and resources of the organisation, as well as the likely duration of the absence)
If the employee is not expected to make a full recovery, to what extent will this affect their ability to carry out the role? Are there any reasonable steps the employee can take to enable the individual to continuing undertaking their previous role?
If the employee is unlikely to be able to resume their previous role, is it possible to identify some suitable alternative employment?
Any decision to dismiss on the ground of capability should therefore be based on a thorough medical investigation, which takes account of all reasonably available medical data to respond to these questions.
Consideration of possible suitable alternative employment is also important. Before dismissing the employee, the employer should consider whether it is possible to continue employing the individual in some other capacity, even though their condition may preclude resuming the previous role. Although the employer would not normally be expected to create a new role specifically for the individual, the employer would normally be expected to exercise as much flexibility as possible in considering this issue. Options might include:
Changing the individual's working patterns (for example, from night working to standard office hours)
Offering part-time employment in the original or a different role
Removing or reducing physical or particularly demanding elements of the role, or factors that might adversely affect the individual's health - for example, in the case of specific allergic reactions.
The expected level of flexibility will again depend on factors such as the size of the organisation, the nature of the individual's skills or experience, and the severity of the individual's condition. However, before dismissing the individual, the employer should be able to demonstrate that all reasonable alternative options have been considered.
'Frustrated' contracts
It is worth also adding a word about the concept of 'frustration' in respect of long-term absence. A contract may be deemed to be 'frustrated' if, due to circumstances outside the control of the parties involved, the contract can no longer be performed, or where performance of the contract will be radically different from that originally envisaged.
In principle, therefore, it is possible for an employee's contract to be frustrated by continuing long-term absence - this would have the effect of bringing to an end the contract and the associated contractual obligations of the parties involved. This in turn would mean that, in an employment context, the employee would have no employment protection rights.
For this reason, employment tribunals have generally been reluctant to find that employment contracts have been frustrated, and the burden of proof is on the employer to demonstrate that frustration has occurred. In particular, the employer would need to demonstrate that there is really very little prospect of the employee recovering.
Alongside this, tribunals are also likely to take account of other factors including the employee's length of service, expected future duration of employment, how replaceable they are, and any continuing sickness or other payments.
Although a number of cases of frustration in the context of long-term absence have been upheld, it is generally preferable for the employer expressly to terminate the employment on the grounds of capability, having followed a fair and reasonable procedure, as described above.
Handling persistent short-term absence
The legal implications of handling long-term absence are generally relatively straightforward in that the status of the absence is rarely in doubt - that is, it is usually clear the absence results from genuine medical causes, even if there is uncertainty about the likely duration or impact.
The handling of persistent short-term absence is often more problematic, simply because it may be difficult to ascertain confidently whether or not the absence is legitimate and, if so, whether the extent of the absence is justified.
Full investigation
It is critical when addressing a case of short-term, persistent absence that the employer first of all conducts a full and proper investigation of the facts. If it appears that the cause of the absence is genuine, then the case should be treated as a medical problem, following equivalent procedures to those described for long-term absence.
The employer will normally seek input from both the individual's GP and/or other relevant specialists and from the organisation's OH adviser. The aim is to both obtain a prognosis of the individual's future condition and identify any possible steps to improve the individual's attendance record.
If, ultimately, the medical problem cannot be resolved to the point where the individual's attendance record is satisfactory, then any dismissal would again be on the basis of capability.
As with long-term absence, the employer would be expected to consult appropriately with the employee, including warning of any impending risk to their continuing employment, and to explore any reasonable options for suitable alternative employment.
If it is not possible to identify any underlying medical causes for the absence, then it is likely that any subsequent dismissal would be on grounds of misconduct arising from the employee's poor attendance record. It should be noted that poor attendance, in itself, will normally be considered only a minor misconduct, and so the employer would usually have been expected to exhaust the full formal disciplinary procedure before dismissal, as well as conducting initial informal absence counselling as described in Section 6 .
It is also important that the organisation has in place clearly defined rules and trigger points, so that employees fully understand the point at which formal disciplinary procedures will be initiated.
At the same time, in assessing whether a given dismissal is fair, an employment tribunal will generally look at all the circumstances surrounding the case, including factors such as the employee's past attendance record, any mitigating domestic or other factors, the likelihood of the attendance record improving, and so on.
It should not be assumed, therefore, that simply because an individual's absence record has reached a defined trigger point, that this automatically justifies disciplinary action if broader factors need to be taken into account. It is also important that as far as possible, the employer applies consistent standards and procedures to all staff.
Employer's steps
In handling cases of short-term persistent absence, therefore, an employer would normally be expected to have taken the following steps:
Immediate investigation of all absences, with an explanation sought from the employee. This is one reason why consistent return-to-work interviews are important, helping to ensure that appropriate information is gathered at the earliest opportunity
If the absence has been largely or entirely uncertificated, the employee should be asked to seek advice from their GP as to whether there is an underlying medical cause, whether any medical treatment is required, or whether the cause of the absence appears to be work-related. It may also be appropriate at this stage for the employer to seek advice from its own OH adviser. The employer should also investigate whether there are any other mitigating factors, such as domestic problems, which can be addressed
If, on the basis of these investigations, the employer concludes there is no good medical or other reason for the absence, then it will normally be appropriate for the matter to be handled under the disciplinary procedures. In practice, this decision will not always be clear cut, but the employer will need to demonstrate that any judgement is based on a reasonable consideration of all available evidence. If the absence appears to have been affected by other, non-medical factors, such as domestic or personal problems, the employer will need to consider whether there is a reasonable prospect of these being resolved
In applying the disciplinary procedures at each stage, the employer should communicate fully and clearly to the employer the nature and level of the improvement that is required, and the potential consequences if this is not achieved, including any risk to the individual's continuing employment.
Disability Discrimination Act (1995)
Alongside the considerations set out above, the employer should also be aware of the implications of the Disability Discrimination Act (DDA), which sets out the rights of those with a 'physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities'.
A 'long-term adverse effect' is one that has lasted or is expected to last at least 12 months. The DDA protects employees who are disabled, under this definition, from discrimination in all aspects of employment, on the basis that an employee should not treat a disabled person less favourably than other employees, without justification.
In addition, the employer is expected to make 'reasonable adjustments' to either their premises or employment arrangements, where failure to make such changes would result in significant disadvantage to a disabled person.
The definition of 'reasonable' here will depend on the resources available to the employer, but might include changes to furniture arrangements, changes in working hours or duties, allowing time off for appropriate medical or other appointments, or providing relevant specialist equipment to facilitate the individual's work.
In managing long-term absence, it is important to note that a disability might potentially fall within the definition of the DDA, even though the condition has not been present for 12 months, if there is medical evidence or opinion that it is likely to last more than 12 months.
It is essential to ensure that all instances of long-term absence are treated equally and consistently, whether or not they fall within the definition of the Act, so that there is no risk of discrimination.
Moreover, the employer must bear in mind the obligation to make reasonable adjustments to reduce the disadvantages potentially faced by a disabled person.
It would therefore be discriminatory to refuse to make reasonable adjustments in working hours or arrangements where these would enable a disabled person to return to work. It would also be discriminatory to refuse to allow a disabled person to return to work on the grounds that they might subsequently be expected to take more time off than others.
While employers would normally be expected to apply consistent standards to all staff, the definition of 'reasonable adjustments' may also include providing some additional flexibility in applying attendance standards to people who are disabled within the terms of the Act.
For example, in assessing whether a disabled person's record of short-term absence is or is not satisfactory, it is necessary to take reasonable account of the impact of the individual's disability on their attendance.
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Section two: Do we have a problem? Section three: What causes employee absence? Section four: Developing an absence policy Section five: Establishing absence procedures Section six: Handling 'problem' absence Section seven: Developing positive initiatives Section eight: Legal implications
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