Short-term sickness absence: checklist

Sarah-Marie Williams of Clyde & Co concludes a series of articles on short-term sickness absence with a checklist for employers. Monitoring absence, adopting sickness absence policies and procedures, and obtaining medical reports, are all effective means of reducing short-term sickness absence.

1. Make the sickness absence reporting procedure clear.

The contract of employment, staff handbook or sickness absence policy should set out the sickness absence reporting procedure. Most notification procedures require employees who are unable to attend work due to sickness to telephone a nominated person (for example their manager) as early as possible and no later than a specified time (for example 30 minutes or one hour after their start time). Ideally, employees should be required to provide details of the nature of their illness, the anticipated length of absence, contact details and any outstanding urgent work that requires attention. The contract, handbook or policy should also make clear that employees are required to self-certify on their return to work after absences of up to seven calendar days, and thereafter provide a doctor's medical certificate.

It is worth expressly reserving the right to require employees to provide a doctor's medical certificate for each absence, regardless of its duration (including absences of less than seven days), where they have frequent or regular patterns of sickness absence. It is useful to be able to obtain medical evidence where there is concern about the number of absences, and whether or not they are genuine. Requiring employees to provide a doctor's certificate can also act as a deterrent from taking short-term sickness absence. However, employers should cover the cost of obtaining doctor's certificates.

2. Adopt a sickness absence policy and procedure.

Dealing with short-term sickness absence is difficult but implementing a sickness absence policy, and following a proper procedure, can help in treating the matter consistently and fairly. While there is no legal requirement to have a sickness absence policy, having one helps to make employees aware of the attendance levels and reporting procedures that are expected of them. A sickness absence policy can be used to spell out different forms of absence, and how they might be treated. For example, short-term absence can be unauthorised if the employee fails to comply with the sickness notification procedure. Unauthorised absences are likely to give rise to disciplinary action rather than be dealt with under the sickness absence procedure. The frequency or pattern of sickness absence may cause concern, for example where absences are often on Mondays or Fridays. In these circumstances, whether or not the employee is genuinely unwell might be questioned.

Once the nature of the absence has been identified, it is necessary to distinguish whether it is a conduct issue, to be addressed using the disciplinary process, or a genuine medical condition, to be treated as a capability issue. A clear procedure, which includes an investigation stage, meetings with the employee, and the capacity to obtain medical evidence, helps to ensure that the matter is dealt with in the right way. Making clear in the policy that disciplinary action may be taken if there is no satisfactory reason for the absences, can act as a deterrent.

3. Consider whether or not other procedures are appropriate.

Regardless of whether or not there is a sickness absence policy and procedure, use of the disciplinary or capability procedure may be more appropriate in certain cases, for example where it is believed that the illness is not genuine, or repeated periods of absence are impacting on the employee's performance or the business. Provided that a fair procedure is followed, dismissal for short-term sickness absence can be fair, on grounds of conduct, capability or some other substantial reason.

4. Monitor absence levels.

Accurate absence records should be maintained, to help to identify absence patterns and flag up when, and what, action is needed. The requirements of the Data protection - employment practices code (PDF format, 5.54MB) (on the Information Commissioner's Office website) must be met, in relation to sickness and absence records.

5. Consult with employees.

Whether or not an employee's sickness absence is thought to be due to genuine ill health, it is essential to consult with him or her throughout the process. Consulting employees about their absence helps in assessing whether or not recurrent absence is likely and whether or not medical evidence should be sought. This is particularly crucial if the absences may be related to a disability.

6. Investigate further and obtain medical evidence.

The circumstances surrounding short-term sickness absences should be investigated and medical evidence sought where the absence may not be genuine, or where it may be disability related. Having a policy of investigating, and requesting medical evidence to verify, frequent short-term sickness absences or absence patterns, can act as a deterrent to employees who are inclined to take time off even when they are not genuinely ill. If a medical report is obtained, the requirements of the Access to Medical Reports Act 1988, which requires employers to obtain employees' consent before approaching their doctor for a report, must be met, as must data protection obligations.

7. Consider whether or not the employee has a disability.

An employee who has had a period of recurrent short-term sickness absence for related reasons may have a disability under the Disability Discrimination Act 1995. If this might be the case, regular consultation and medical evidence is necessary to establish whether or not reasonable adjustments can be made to help him or her sustain a more regular working pattern. Reasonable adjustments might include making changes to the job, or agreeing to reduce the working hours.

8. Keep a paper trail.

Accurate records and file notes should be kept of all communications (including telephone conversations and messages), meetings and correspondence with employees, in respect of sickness absence. Preferably, discussions will be followed by a letter summarising the steps taken and action agreed (for example that the employee will see the company doctor). If an employee is subsequently dismissed and brings a claim in the employment tribunal, the tribunal will look at whether or not the employer acted reasonably when dismissing. These records can be crucial to an employer's case. Given that such documentation is disclosable in tribunal proceedings, it should be written in a non-judgmental, factual style. Records should be stored confidentially and used only for the purpose for which they are collected, in accordance with the data protection requirements.

9. Adopt policies for alternative forms of absence.

It is advisable to have policies to address absence for reasons other than sickness, such as domestic emergencies, childcare problems and bereavement. While there is a statutory right to reasonable unpaid time off to deal with situations concerning dependants, some employers offer paid time off in these circumstances. Having a policy that clarifies the position on paid or unpaid time off for non-sickness-related absences may help to reduce the incidence of sick leave for absences that are unconnected with illness. This means that absences are more likely to be correctly categorised and that sickness absence data is more accurate.

10. Reward good attendance.

Absence levels that are not due to genuine illness may be reduced if good attendance is rewarded (for example by bonuses or salary increases). However, there must be no unlawful discrimination against employees whose absence is disability or pregnancy related.

The next topic of the week article will be the first in a series on disciplinary and grievance procedures and will be published on 10 February.

Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a solicitor at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.