Short-term sickness absence: frequently asked questions

Sarah-Marie Williams of Clyde & Co LLP continues a series of articles on short-term sickness absence with some frequently asked questions. Questions on the procedure to follow in cases of short-term sickness absence, the value of sickness absence policies, and the importance of obtaining more information such as a medical report, are included.

Can employers address all types of sickness absence in the same way?

No. Sickness absence may be intermittent or frequent short-term absence, where the reasons are either related or unrelated. Alternatively, sickness absence may be long term. Where reasons for short-term absence are related or the absence is long term the employee may be suffering from an underlying medical condition that could amount to a disability under the Disability Discrimination Act 1995 (DDA). Different types of absence should be treated differently. Whether or not an employee has a genuine medical condition largely determines how the matter should be addressed. A genuine medical condition will normally be treated as a capability issue. Where there is no medical condition and no satisfactory explanation for the absence the matter is normally one of conduct that should be addressed through the disciplinary procedure.

Is it compulsory to have a sickness absence policy?

There is no legal requirement to have a sickness absence policy. However, a policy helps to ensure consistency in treating sickness absence. Communicating a sickness absence policy to employees also helps to make them aware of the attendance levels and reporting procedures that are expected of them, and informs them that the disciplinary or capability policy will be instigated, where necessary. This can act as a deterrent against short-term sickness absence that is not genuinely related to health.

Many employers have a contractual sick pay policy that provides sick pay over and above statutory sick pay. How can employers avoid abuse of the contractual sick pay policy by employees taking high levels of short-term sickness absence?

It may be possible to reduce short-term sickness absence levels and the abuse of a contractual sick pay policy by ensuring that there is an element of discretion in the policy regarding whether or not to continue paying after a certain number of days' sick pay has been exhausted. This discretion should be exercised in a fair, consistent and non-discriminatory manner. Advance notice should be given to affected employees that contractual sick pay will cease and the reason for this. Contractual sick pay schemes that effectively guarantee payment for a set amount of sickness absence create problems for employers as they can result in employees treating sickness absence as if it is additional holiday entitlement.

Can a sickness absence dismissal be fair?

Yes, a sickness absence dismissal can be fair if a fair procedure is followed and the dismissal is for a potentially fair reason, namely that it:

• relates to the capability of the employee to perform the work that he or she was employed to do;
• relates to the conduct of the employee; or
• is for some other substantial reason that justifies the dismissal.

In what circumstances could a dismissal for short-term sickness absence be a fair dismissal for some other substantial reason?

Most dismissals for short-term sickness absence are related to conduct or capability. However, a fair dismissal for some other substantial reason could arise where, for example, it can be shown that the absence has a significant detrimental impact on the effectiveness of the business and the employee's performance.

What is the proper procedure for dealing with short-term sickness absence?

The proper procedure for dealing with an employee who is taking a lot of short-term sickness absence includes:

• establishing the duration, frequency and pattern of absences:
• investigating the matter further and attempting to seek medical evidence to establish whether or not ill health is the cause;
• consulting with the employee throughout;
• referring to, and following, existing sickness or absence policies and procedures, and where applicable the capability procedure;
• considering alternatives to dismissal where the absence is related to ill health;
• making reasonable adjustments to accommodate the employee where the ill health amounts to a disability under the DDA;
• following a fair and proper disciplinary procedure where there is no underlying health issue or other satisfactory explanation for the absences;
• including timescales for improvement in formal and informal warnings, together with details of potential future action if there is no improvement within the specified timescale; and
• ensuring that both contractual and statutory notice obligations are met in the event of dismissal.

How should short-term sickness absence be documented?

It is important to retain all correspondence relating to an employee's short-term sickness absence, including file notes of telephone conversations and messages, together with any medical evidence, as these may be needed to defend a tribunal claim.

Data relating to employees' health (physical or mental) is classed as sensitive personal data under the Data Protection Act 1998. Therefore, before processing such data various conditions must be met. Documentation, including correspondence and notes, and details of medical information, should be stored confidentially and used only for the purpose for which it was collected. According to the Data protection - employment practices code (PDF format, 5.54MB) (on the Information Commissioner's Office website) documentation relating employees' health should be stored separately from absence records.

Should employers reserve the right to refer employees with high absence levels to a doctor?

Yes. The employment contract should include a term reserving the right to refer an employee with high absence levels to a doctor so that further information (usually in the form of a medical report) can be obtained. If the employee refuses to see a doctor he or she could be subject to disciplinary action for refusing to follow a reasonable instruction. Disciplinary action is likely to be easier to justify if there is a suitable contractual clause making the requirement clear. Further medical information is essential for making informed decisions, including whether or not to dismiss, or what reasonable adjustments should be made. Obtaining a medical report, either from a company doctor or from the employee's own doctor, will help to establish whether or not the absences are due to genuine illness. The fact that a medical report may be sought can also act as a deterrent to employees who are prone to taking unauthorised "duvet days".

The Access to Medical Reports Act 1988 requires employers to obtain employees' consent before approaching their doctor for more information.

Next week's article will a checklist on reducing short-term sickness absence and will be published on 3 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.