1. Masterclass: Managing Sickness Absence – Refresher & Key Learnings
2018
Delivered by: Claire Rosney
Produced for: Airbus
Masterclass:
Managing Sickness Absence – Refresher & Key Learnings
Vista Employer Services Limited

2. Summary
We ran this session to recap on the law relating to dismissals under the AMS Policy and also look at the key learnings we could take following a recent Tribunal claim for unfair dismissal and disability discrimination. The employee in this case had been dismissed in accordance with the Policy. In particular, we looked at some of the things that we would do differently if we had a similar case in the future. We started the session by recapping on the law relating unfair dismissal, discrimination arising from disability, indirect discrimination and reasonable adjustments. We then looked at the overview of the Tribunal process and what we would need to demonstrate to successfully defend the claims. We then focussed on what we did well and what we could improve upon. This generated a lot of discussion from the HRBP’s regarding our current practises and what practical steps we could implement as a business to overcome some of the difficulties we faced in this case. For example, we discussed the quality of our invite letters, outcome letters and minutes, and detailing the business impact, alongside the importance of saving all the correct documentation in one place so its easily accessible to the HR team should a case like this arise again in the future. A summary of the key learnings can be found in the slides below. Please take a look!

3. Agenda Refresh on the law. Brief facts of the case.
Case preparation – Issues for the ET;
Bundle; and
Witness Statements.
Key Learnings.
Questions.

4. The Law Unfair Dismissal: Fair reason – Capability or SOSR.
Reasonable belief after reasonable investigation.
Fair procedure.

5. The Law Section 15 – Discrimination arising from disability:
Unfavourable treatment because of something arising in consequence of the individual’s disability.
Cannot show that the treatment is justified.

6. The Law Section 19 – Indirect Discrimination:
Practice, Criterion or Provision (PCP) applied to all.
PCP puts (or would put) those with the individual’s disability at a particular disadvantage when compared to others.
PCP puts the individual at that disadvantage.
Cannot show that the PCP is justified.

7. The Law Section 20 – Reasonable Adjustments:
Where PCP, physical feature or lack of an auxiliary aid puts a disabled person at a substantial disadvantage compared with those who are not disabled.
The Employer must take such steps as is reasonable to take to avoid the disadvantage.

8. Brief Facts Employee commenced employment in 2011.
2014 diagnosed with MS
17 absences in 5 years – some disability related, some not.
First triggered AMS Policy in 2014.
Discretion applied on 6 occasions – 4 occasions by way of a reasonable adjustment
Reasonable adjustments to shift pattern and breaks.
Last period of absence pre-planned operation – not disability related.
Employee dismissed.

9. Case Preparation Claim issued: Response submitted. Pre Hearing Review.
Dismissal amounted to unfavourable treatment (Section 15).
Application of the AMS Policy amounted to Indirect Discrimination (Section 19).
Failure to make adjustments to AMS Policy; Car Parking & Breaks (Section 20).
Unfairly dismissed.
Response submitted.
Pre Hearing Review.
Joint Bundle.
Witness Statements.
Hearing.

10. Case Preparation
In order to successfully defend the case, needed to be able to demonstrate with evidence:
Dismissal was for a fair reason and a fair procedure was followed.
That dismissal was a proportionate means of achieving our legitimate aim of consistent attendance at work
The AMS Policy does not disadvantage disabled people as the effects of the Policy is mitigated by the ability to apply discretion and make reasonable adjustments.
Alternatively, the AMS Policy is a proportionate means of achieving our legitimate aim of consistent attendance at work.
We had made reasonable adjustments to the Policy and in the workplace.

11. Importance of the Pack!! AMS Policy. Accurate Bingo Chart.
Return to Work Interviews.
OH Reports/Medical Evidence.
s/Documents relating to reasonable adjustments.
Invite Letters.
Minutes of each Sickness Absence meeting – detailing discussion about condition, impact, OH advice, support/ reasonable adjustments, impact of absence on business, consequences of failure to improve.
Outcome letters – detailing above and why discretion was/was not applied. REFER TO BUSINESS IMPACT!!!
Appeal documentation – letters, minutes etc.

12. Risk Areas
Discussion about reasonable adjustments not well documented in the minutes.
Car parking – not fully investigated whether did place the employee at a disadvantage – also if did – did we need a Blue Badge or could have made a concession?
OH advise not taken into account at Stage 3.
Little or no reference made to business impact in either the minutes or outcome letters.
Lack of detail in outcome letters regarding why discretion was/was not applied.
Managers frustrations with having to go through the process!
Comments made during an Absence Review Meeting.

13. Key Learnings
Absence data – ensure that it is accurate and the correct stage has been reached.
Absence Review Meeting – discuss reasons for most recent absence, absence level, current medical position, OH advice, support/adjustments, impact on business.
Minutes – take detailed minutes of what was discussed rather than relying on a tick in the checklist.
OH Advice – make sure managers are aware of most recent advice or consider getting it.
Reasonable adjustments – explore at each stage and don’t be too rigid in terms of processes if an adjustment could be made.
Outcome letters – confirm what discussed and REFER TO BUSINESS IMPACT!!!
Manage your Manager – keep frustrations and comments in check.

14. One last word on…. the Pack
Take time to go through it.
Does it include all relevant documents:
The Policy.
Bingo Chart.
RTWI.
Copies of previous warnings.
OH Reports.
MAKE SURE TO SAVE COPIES OF ALL DOCUMENTS TO SAP

15. Questions?

16. Contact Details
Vista Employer Services Limited, First floor, Southgate Two,
321 Wilmslow Road, Cheadle, Cheshire, SK8 3PW.
T E.