Legal Q&A: Absence levels

By David Gibson, solicitor, Dickinson Dees

Q Why should I be concerned about managing sickness absence?

A A recent CBI report has found that workplace absence has fallen to its lowest level for at least 14 years. However, the average cost to firms of absence per employee rose to its highest level for five years. The CBI calculates that the total cost of absence to UK business rose from £10.7bn in 2000 to £11.8bn in 2001.

Companies are spending more on paying overtime to existing staff or bringing in temporary workers. As there are further proposed changes to the rights and benefits of temps by the EU, these costs are likely to increase.

Q How should I go about reducing sickness absence?

A The best way forward is to ensure there is a framework in place so that employees are made aware not only of their rights when they are sick, but also of their responsibilities. A policy should be put in place and communicated to all staff to ensure sickness absence is effectively managed. Consistency of approach is key. One rule for senior management and another for other staff will not assist in tackling the problem. It could also be used in evidence against an employer in challenging the fairness of a dismissal.

Q One employee has a series of short-term illnesses/absences - what can I do about this?

A There are no easy solutions. It is often difficult to manage intermittent absences, but certain guidelines can be set out in the employment contract or policy.

One strategy is to implement a return-to-work interview. This would ensure the worker has to justify the reason for taking time off work. Obviously, privacy and confidentiality have to be taken into consideration, but this does not prevent an employer from asking for an explanation for absence. A good sickness absence policy will state that any abuse of sick pay provisions could result in disciplinary sanctions.

Q What about long-term absences?

A Gathering medical evidence is key. If the contract of employment doesn't include a provision allowing the employer to send the worker to a company doctor, this may be something that needs to be addressed when there is a contract review.

On receiving medical evidence, it is important that a process of consultation and discussion takes place with the employee. Remember, staff have certain rights concerning the disclosure of medical reports. Listen to their proposals for their return work. Think laterally - can they return on a part-time basis for a short period, or are there other duties they can perform? Make sure all steps are recorded in writing to confirm what is expected of the employee, and also what steps the employer is going to take.

Q What are the downsides of not getting evidence or dismissing the worker without a procedure?

A If the employer is not adequately informed or has not followed a fair procedure and the employee has sufficient continuity of service (one year or more), they may be able to bring a claim for unfair dismissal. The maximum level of compensatory award is currently £53,500.

The employee's condition may satisfy the statutory test for disability as outlined in the Disability Discrimination Act 1995 (DDA), even if they have been off work intermittently for a broad range of reasons. There is no continuity of service requirement in bringing a claim under the DDA.

If an employer treats an employee less favourably on the grounds of their disability, or fails to make reasonable adjustments to ensure the worker can perform their contractual duties, they may not be able to defend a claim in the employment tribunal for disability discrimination. And the level of compensation for disability discrimination is uncapped.