Sickness absence is an issue all employers have to address at some point with their staff. Not only is there a legal requirement to provide specified information relating to sickness absence, there are several issues that are best dealt with by way of a written policy.
In relation to the legal requirements, terms and conditions regarding sickness or injury, including the provisions for sick pay, must be given to all employees in writing within two months of beginning employment, either as part of their employment contract or via a separate policy or handbook documents. These policies do not need to be contractually binding (it is preferable that they are not, to allow more flexibility) but they ought to be clear and accessible.
The key areas to include in the policy (if they are not covered in the employment contract) are:
- the reporting procedure – this will need to include how and when to report sickness absence, whether contact must be made each day or less frequently and what information is to be given;
- evidence – this section covers what is required for self-certification and when medical evidence (ie a fit note) is required, as well as any requirements to undergo examinations;
- unauthorised absence – the policy should be clear about the consequences of failure to follow the procedure and/or to provide evidence;
- the return to work process; and
- pay – information should be given on what payments will be received, such as statutory sick pay and any entitlements to company sick pay, as well as any eligibility criteria for these payments.
Sickness absence policies can also be used to set out the procedure for managing long-term and frequent short-term absence. This can either be dealt with via a separate policy or included in a general sickness absence policy.
This element of the policy should be clear on any trigger points used (for example, the Bradford factor), stages of the process, meeting arrangements and in particular any rights regarding companions and appeal, ultimately to ensure a fair procedure should the absence lead to dismissal. Without a clear procedure the employer risks claims of unfair dismissal as well as discrimination complaints.
To allow employers to properly manage absence issues, there should also be a clear statement on when a matter would be likely to fall outside the scope of the policy and be deemed misconduct; for example, for unauthorised absence or refusing to cooperate with a process.
It is also good practice to include a section on disability-related illnesses or reference to any relevant related policy, to ensure that those with disabilities have clear information on how to seek assistance, and that managers are aware of their obligations, for example, to make reasonable adjustments.
There are several areas that can create issues for employers when sickness absence arises; in particular, how to approach holiday and sickness absence. The European court has held that where pre-arranged holiday coincides with a period of sickness, the worker must have the option to take their holiday at a later date. It is not essential to cover this in a policy, but as with other tricky areas (such as maternity illnesses) it is often best to be transparent to avoid disputes with employees.
Failing to cover the above key areas can lead to grievances, makes it more difficult for employers to dismiss or discipline employees and increases the risk of tribunal claims (especially given the recent removal of tribunal fees). Drafting an effective policy will assist employers to approach absence in a consistent and fair manner and ensures employees are clear about what is required of them and the consequences of failure to follow the policy.
Liz Parkin is an associate specialising in employment law at Shoosmiths