Absence Management – the Legal Side!

 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 1. Statistics (CBI stats on 2010)

 Short term persistent  Long term  Disability related  Unauthorised  The “sickie” 2. Managing Absence

 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…] 3. Key Foundations

- 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 4. Key Foundations (cont)

 Self-certification forms  Return to work interviews  Trigger mechanisms  Bradford factor – measure absenteeism, tackle short frequent and unplanned absences – more disruptive  Warning procedure [cont...] 5. Managing Short Term Persistent Absences

 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 6. Managing Short Term Persistent Absences (cont)

 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 7. Bradford Factor or Similar Trigger Mechanisms

 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 Unauthorised and Sickies

 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] 9. Long Term Sick – Key Principles

 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) 10. Long Term Sick – Key Principles (cont)

 “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…] 11. Fair Dismissal

 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 12. Fair Dismissal (cont)

 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…] 13. Disabilities

 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 14. Disabilities (cont)

 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 …] 15. Disability Discrimination

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: