Hi All,
I have an employee who is off sick regularly (1-3 days) when suffering from Migraine.
He is a reliable employee otherwise.
In attempts to help him improve his sickness record we have paid for him to see a consultant specialist for treatments, and have moved him into a role (with his consent and agreement) which would in theory be less stressful, and more accomodating to his potential days off (in his previous role his sickness had a detrimental effect on his ability to do his job properly - ie it really needs continuinity of attendance).
However, despite these consdierations the regular sickness continues.
His sick pay is at the discretion of the business owners (he is salaried) and his contract states that sick pay may be withdrawn if the owners feel that it is neccesary.
I sense patience may be running out, as this has been going on for several years now. Can sick pay be withdrawn without it being discriminatory? what else can be suggested to help resolve this situation?
Any comments/suggestions?
many thanks...........PB
Hi PB,
I don't think for a second that Migraine would qualify as a disability, so unless there is another reason related to the employees sex, age, religion etc then I can't see any link whatsoever in withdrawing sick pay.
The only thing I would suggest is that you just check consistency with any other longer-term sick issues in the past and how long you have paid sick pay for. Although it is discretionary, it is wise to make sure there is some sort of pattern so you can ensure you are being fair.
I would however as a matter of courtesy sit down with the employee and explain why this is being done and confirm that the Company has the right to withdraw sick pay if they so wish so that they understand this and how long you will be withdrawing it for (eg; until the next financial year?). I would not suggest doing it indefinately. I would also point out during this meeting that you will continue to support them where possible and ask if there's anything they need from the Company to help them.
It seems there are some cases when migraine can be covered by the DDA - as discussed in this thread before Christmas...
Rob MossEditor, Personnel Today
Thanks for the reply.
I don't think theres any question of this person not having been treated fairly in relation to past cases of intermittent long term sickness. They have been well supported for several years now.
If it is withdrawn temporarily I guess some criteria will need to be applied for it to be re-instated? Saying it is being withdrawn for 12 months and then re-instated seems to suggest the only rationale is to save costs, when this isnt the case. Is it fair to then apply criteria such as "Sick pay will be re-instated once the preceding 12 months sickness is at or below the Company average" ?
The criteria for sick pay sound a little capricious and I would recommend something rather less subjective. If you don't think the sickness is genuine, get medical advice and if necessary take disciplinary action. Otherwise, use your medical advice to manage the employee's attendance, which might also lead you to dismissal.
You don't say how much time off in total the person has over the last twelve months and how that compares with the general level of sickness in your organisation. You also don't mention whether you have any absence management system in place. I know it isn't universally liked but cases like these are a prime example of why systems like the Bradford Factor can help to fairly manage absence levels when incorporated into a sensible absence managament policy and procedure. At least then you can also concentrate on the issue of availability/reliability rather than just the sickness itself (Obviously paying due regard to the DDA).
Thank you for your comments.
The sickness is genuine. As mentioned before we have already paid for courses of treatments in efforts to improve his ability to avoid time off. We have also moved him into a role which should lower his stress levels and was intended at least in part to help.
His sickness has been the highest in the organisation for the past 3 years. (barring those affected by one off long term injuries etc)
My initial question was really trying to understand whether or not there was a legal precedent already set about Migraine with respect to the DDA.
If Migraine is like any other general sickness - then the matter is capable of being dealt with by our existing absence management policy.
What I don't want to do is start a process which is deemed discriminatory because of the nature of the ailment.........
I have not heard of any case law but you need to take legal advice. Even if the case does fall within DDA parameters it doesn't make the person untouchable. You have obviously made adjustments to try and help them and you have involved medical advice so your legal advisor should be able to help you deal with the overall matter of this person's attendance on a capability basis.The issue of sick pay is a bit of a red herring and I would suggest that you advise your boss not to treat this person any differently to others on that score as the risk isn't worth it.
Happy New Year everyone!
PB - you might want to check out the EAT decision in the case of Royal Liverpool Children's NHS Trust v Dunsby which specifically comments about the application of an absence policy where some absences are disability related.
The bottom line is that regardless of the cause of the absence (DDA or not) dealing with it by using an absence management policy can be perfectly acceptable.
Hope this helps.
semper ad meliora
Not only does Migraine Disease qualify as a disability under the Americans with Disabilities Act, migraine patients are routinely qualified for Social Security Disability benefits. I am not sure where you got the idea that migraine disease would not qualify as a disability, but I suggest you do a simple Google search and spend 4-5 minutes reading.
Here are just a few cases I pulled withing just a few minutes as I came across this thread, where the migraine patient was awarded disability benefits by an Administrative Law Judge:
1. http://www.migraines.org/disability/pdfs/dis-1998.pdf
2. http://www.migraines.org/disability/pdfs/dis-1997.pdf
3. http://www.migraines.org/disability/pdfs/dis-1996.pdf
4. http://www.migraines.org/disability/pdfs/dis-vet-1995.pdf
If you would like links to civil lawsuits against employers for discrimination against migraine patients, let me know what state you are in, and I will be happy to provide you with the favorable decisions that apply to your jurisdiction.
Migraine disease is not a mental disorder, nor is it caused by stress, anger, poor lifestyle choices or "all in the patient's head". Migraine disease is a true organic, genetic, hereditary, neurological disease. It is caused by a neurovascular disorder beyond the patient's control, and in most patients is one of the most painful experiences know to mankind. They don't call them "suicide headaches" just for the fun of it.
There is no cure for migraine disease, and despite reductions in stress, avoiding food triggers, taking medications, and every preventative treatment available, every migraine patient will still suffer from them, most the rest of their lives. It is not the patient's fault they have migraines, nor did they choose this disease or to be disabled. They are not lazy, parasites or trying to hurt your business on purpose.
Further, because migraine disease is a chronic pain condition as well, over 80% of patients suffer from depression, anxiety, and social stigma, as well as employment discrimination.
With that said, "cazmiles", I would suggest before you post erroneous information on a subject you have no actual knowledge, you either educate yourself or keep your mouth shut. You are not an expert, unique, a physician or an attorney; you simply have internet access.
Source: I am an attorney and patient advocate.
First, I want to thank you for treating this employee with compassion and treatment, making reasonable accommodations, and according to your post thus far, not violating any laws.
Please read my post below explaining what migraine disease actually is, and links to cases where patients have been awarded SSD benefits as a result of their disability. As an employer myself, I completely understand your situation, and empathizes with the cost and time lost to your business.
I would strongly suggest that you contact and attorney who specializes in employment law (realizing this post is very old) for the proper steps to take to make sure you do not violate the law or give this employee a cause of action against you or your business.
The DDA and ADA most certainly apply to migraine patients, and I would advise you to contact the DDA office in your area in order to find out the proper procedure to apply for their Fee Payment Assistance programs in regards to work absence for disabled employees. In July, 2011 the DDA actually increased the amount paid to employers and amount of days payable to employers who are participating in their programs.You can actually receive Federal funds as well for the days missed due to employee disability, and I suggest you take advantage of these programs.Again, thank you for trying to accommodate this employee, instead of just firing them (which is an ethical and legal mistake) that many employers make, which is one of the reasons why I have a very successful business.
Dear 'Know it none'
Your posts shock and disappoint me - your tone and message is far from what people expect on this board.
You have also made some basic errors...
I am all for free speech and the offering of advice between professionals but please do not come onto this board where the advice is of high quality and the tone one of mutual help and respect and post as you have done, its neither helpful nor professional
Dear Just me,
My posts are not offensive, except to the person that is in disagreement with me, and stated incorrectly that "migraine is not a disability" which is patently false and misleading to anyone who reads it. As for tone, I could very well assume that you are an American (whatever that derogatory comment is supposed to convey) because of your tone. If you are a representative of the tone on this website, I have no idea where you have the temerity to complain about mine, as you are the one using personal attacks, based on nation of origin, to try and imply I am some snotty American. Not very professional or of high quality.
Secondly, there is no such "co.uk" in ANY URL displayed on the website, and nothing in the Terms of Service that indicated the only people who are allowed to post are persnickety people from the UK.
Thirdly, I not only thanked the original poster for "not firing" the individual, but for also making reasonable accommodations, and going out of his way to help the patient as much as possible. So this bloviating by you, about comments I never made, is just a straw-man argument that you have created in your own mind, in order to attack the post you disagree with. It is completely out of context to the comments I made, and your critique mentions statements that I explicitly state in my original post. I never implied or stated that the poster wanted to fire the employee, you just fabricated this out of thin air because you had nothing else to attack. I even acknowledged that I sympathized with the employer for the loss of funds attributed to the absenteeism, suggested ways to fix the issue, and get his money reimbursed.
Furthermore, American law is largely based on English "common law" and is most certainly applicable to people in the UK, as in many regards the laws are almost identical.
I couldn't care less if you are disappointed in my post, as your criticism is based on personal attacks, a lack of respect for the poster, because I "appear" to be American, instead of the ideas presented. Not only that, but you sound like a completely arrogant jerk who presented no real criticism except the point that I am citing US legal precedent. The rest of your post is just your crying about an American posting on YOUR UK site. Get over it. If the advice is of high quality, I suggest you direct your comments to the poster who was not only stating ideas contrary to US and UK law, but to medical knowledge known around the world. While the cases I cited were indeed US jurisprudence, they are still just as valid as the laws in this regard in applying to the UK, again, are almost identical.
Frankly, your tone is one of disrespect and arrogance, not mine. I simply stated well established medical FACTS as well as established FACTS in the UK. The only real criticism you have, is that you don't like my post, as I am an American. Frankly, I think you are a bigot and it is apparent from your comments about Americans (which if it wasn't for Americans, you all would be speaking German right now. Your welcome)
Take your disappointment and shock and toss off, have some tea, and quit displaying your clear inferiority complex. My comments are only not helpful to the gits who try and ignore the facts, and have nothing but derogatory criticism based on nation of origin. In short, your criticism has no merit, is patently false in many regards, uses logical fallacy, and personal attacks in order to try and diminish my ideas, instead of addressing the merits of the argument. With that said, if you don't like my posts, you are free to ignore them, at your peril, and you are also free to place your lips upon my bum and give a nice big kiss. By the bye, you are welcome for saving your country from invasion and total destruction, and I am sorry you are still a "subject" in your own country, which apparently has made you very cranky. I don't care what you expect, as your opinion means nothing to me, and never will. If you don't like it, you are free to ignore, but please quit posting your pseudo-intellectual rants, bigoted personal attacks, and patently false "advice". After all, there is simply nothing you can do about it if you wanted to. That is the benefit of being an arrogant American, and not a subject. Now, run along, I am through with you, before I give you another verbal slap. I don't need advice from a half-wit, subject, who has no idea of the law, in either country, or medical fact established around the world. You are dismissed.
Oh dear JustMe, what have you gone and done now, upsetting our cousin. Typical Yank, 3 years late joining us in WWII, now 3 years late answering this post.
Must go to bed now, reading this diatribe has given me a migraine.
Best wishes as always
Pausanias
Well, if I recall, we had to kick your asses out of our country to begin with, so if I were you, I would be glad we showed up at all. Of course we joined 3 years late, not our problem to solve YOUR war, but we did the work when it needed to be done. Don't feel bad that we kicked your ass once, and saved it another, you aren't the first, nor will you be the last. Is that why you folks hate Americans so much, because we are so damn good? LMFAO!
Enjoy being subjects, dolts.
I am disappointed to see my post has turned into this...........
Quite amazing how some people can find the inclination to argue about something that really doesn't warrant it.
Hi PB
Don't take it too much to heart, trolling has become a national pastime in America. I'm interested to know since your posting three years ago how it all worked out.
Regards
Thanks Pausanias
I really wasnt expecting the septic to kick off at me like that !!!
Being a quintessenitally English rose with good manners and generally a good word for everyone I felt their post was a little out of line, little did I know that they were SERIOUSLY angry about it ......
Oh well laugh and the world (perhaps expect the US) laughs with you !!
I too would love to know how it turned out !
My apologies PB, I didn't think I was being insulting to you with my post, I was just trying to give you helpful information, which applies both in the US and in the UK, despite the armchair attorney's assertions to the contrary.
I also thought I was very clear that I was thankful to you for accommodating the employee as much as you have already, many, rather MOST employers do not try to make any accommodations, which is why they get into trouble, and I eventually get a phone call.
Regardless of the bickering, I really wanted to make sure you were not going to get into trouble, further, I tried to explain how you could get reimbursed (up to 33 days in the UK) for employee absence due to disability.
I think your actions and accommodations are to be commended, and I believe I also stated that no matter the disability, it is unfair for the employer to lose money and productivity to their business. I completely understand your circumstance and was trying to help you.
Hope everything worked out for you, and again, thank you for trying to help this person. I have no doubt they were not trying to hurt your business on purpose, it is a disease they have no control over, and accounts for over 40$ billion in lost productivity and wages in the US alone. As an aside, according to the WHO "severe migraine attacks are as disabling as quadriplegia". "With an estimated 6.6[1] million people in the UK reporting moderate headache-related disability, the cost to the economy is significant - estimated at GBP1 billion. Studies have estimated that 90,000 people are away from work or education every day to due to headache.
One of the reasons the people on this board do not believe me (besides the fact that I am an American) is because they simply are ignorant of the disease or its impact on your country. Nor do they actually believe this is a serious disease, they think it is "just a headache." Headache UK, an alliance of five headache and migraine charities, wants to see a significant shift in how the condition is viewed by employers and employees alike. Ann Turner of Headache UK said: "Almost three quarters (71%) of people surveyed believe that non-headache sufferers use severe headaches as an excuse when they feel like a day off. This has led to a culture of suspicion around those who are real sufferers". Check my facts: www.headacheuk.org
The Equality Act of 2010 (For those of you not paying attention, this is UK law) states the following in its explanatory notes.
You can always check my facts http://www.legislation.gov.uk/ukpga/2010/15/contents
Facts about migraine:
- 1 in 8 people in the U.K. suffer from migraine. - It affects over twice as many women as men. - It affects people from all age groups (even young children) and all social classes. - Migraine costs the U.K. around GBP1 billion per annum. - The World Health Organisation has classified headache as a major health disorder and has rated migraine amongst the top 20 of the most disabling lifetime conditions - A migraine attack can last for between 4 and 72 hours. - Sufferers experience an average of 13 attacks each year. Additional Sources, since my nation of origin is evidently not considered a logically fallacy in the UK when applied to debate, although discrimination for almost every other public interaction or employment on that bases is considered illegal, according to The Equality Act of 2010, [1] Boardman et al 'Epidemiology of headache in an English district' Cephalalgia Vol23 No. 2 March 2003 pages 129 -137 (14% reported, equivalent to 6.67million of adult population) [2] Steiner et al, "The prevalence and disability of adult migraine in England and their relationships to age, gender and ethnicity. Cephalalgia, Volume 23, Number 7, September 2003 pp 519 - 527.
- 1 in 8 people in the U.K. suffer from migraine.
- It affects over twice as many women as men.
- It affects people from all age groups (even young children) and all social classes.
- Migraine costs the U.K. around GBP1 billion per annum.
- The World Health Organisation has classified headache as a major health disorder and has rated migraine amongst the top 20 of the most disabling lifetime conditions
- A migraine attack can last for between 4 and 72 hours.
- Sufferers experience an average of 13 attacks each year.
Additional Sources, since my nation of origin is evidently not considered a logically fallacy in the UK when applied to debate, although discrimination for almost every other public interaction or employment on that bases is considered illegal, according to The Equality Act of 2010,
[1] Boardman et al 'Epidemiology of headache in an English district' Cephalalgia Vol23 No. 2 March 2003 pages 129 -137 (14% reported, equivalent to 6.67million of adult population) [2] Steiner et al, "The prevalence and disability of adult migraine in England and their relationships to age, gender and ethnicity. Cephalalgia, Volume 23, Number 7, September 2003 pp 519 - 527.
[1] Boardman et al 'Epidemiology of headache in an English district' Cephalalgia Vol23 No. 2 March 2003 pages 129 -137 (14% reported, equivalent to 6.67million of adult population)
[2] Steiner et al, "The prevalence and disability of adult migraine in England and their relationships to age, gender and ethnicity. Cephalalgia, Volume 23, Number 7, September 2003 pp 519 - 527.
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