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Sickness in the workplace

Is your absence policy up to scratch?

A recent independent review of health at work for the UK’s Department for Work and Pensions (November 2011) established that 140 million working days were lost to sickness absence each year (2.2% of all working time or 4.9 days per worker). On average, absence due to sickness is 27% higher during the colder months from October to March, than from April to September and absence due to ill health is also consistently higher for women than for men.

Whether time away from the workplace takes the form of recurrent short-term absence or long-term absence, managing ill employees can be problematic for employers, not least because of the associated costs. It is essential that employers have a sickness absence policy that ensures absences are dealt with consistently and effectively.

Employers should be diligent in monitoring sickness absence to ensure it is genuine, to establish the nature of the employee’s illness and alert the employer to any exposure in terms of claims for unfair dismissal, negligence or breach of contract that may arise out of sickness absence. For instance an employee may allege that their absence is caused by the employer’s conduct, either through bullying, harassment or stress from too high a workload. Employers may not only be subject to claims for unfair dismissal but liability may also arise in respect of personal injury.

Under the Employment (Jersey) Law 2003, potentially fair reasons for dismissing an employee for sickness absence largely fall into the following three categories:

  1. Capability – most dismissals through sickness absence will be on the grounds of capability.
  2. Some other substantial reason (SOSR) – where intermittent sickness absence has a significant, detrimental effect on the employer’s business and the employee’s performance, the employer may consider dismissal under the grounds of SOSR.
  3. Conduct – alternatively, where the employee is persistently absent with no valid reason, or has breached the employer’s sickness reporting policy, dismissal may be on grounds of the employee’s conduct.

Whatever the reason for the dismissal, the employer must act reasonably in dismissing the employee and this is where an effective policy comes into play.

In the case of short-term sickness absence the employee should be informed that their attendance record has given cause for concern, they should be given a time-scale within which to improve, and provided with an explanation of what will happen where their attendance does not improve.  Where there is no improvement, then the employer may choose to proceed under its disciplinary policy or capability policy to resolve the issue.

Where the issue is long-term sickness, proceeding along the disciplinary route will be inappropriate. The employer should investigate the reason for the illness and rule out work-related stress. The employer should remain in contact with the employee throughout their absence, perhaps by a telephone call every two weeks or so, being mindful of the fact that too much contact may lead to claims of harassment. A medical report should be sought by the employer, through the employee’s GP, the employer’s doctor or an occupational health provider. The employee should be consulted on the report giving them an opportunity to comment on the medical evidence and to put forward their case. Entitlement to sick pay should be reviewed regularly. Consideration should be given to any steps that can be taken to support the employee in a return to work, including perhaps a return on a phased basis.  A return to work interview is advisable to ensure that the employee has the opportunity to express any concerns they may have.

Where it has become apparent that the employee is unlikely to be able to return to work, consideration should be given as to what steps might be taken to terminate the employee’s employment.  In circumstances where the employee may qualify under permanent health insurance this should be considered before dismissal. Otherwise, the employee may have a claim for breach of contract because they have been wrongfully deprived of benefits they might otherwise have been entitled to.  The employee must be warned that dismissal due to illness absence is a possibility and given an opportunity to put forward their case.

Managing sickness absence is undoubtedly tricky for the employer. The key is to ensure that employee absence is effectively dealt with from the outset. Many employers offer incentives to employees who have a good attendance record and this has proved effective in reducing sickness related absence. The difficulty here is the potential exposure to disability discrimination claims, which are not presently relevant in Jersey, but may be in the future.

If you need advice on an employment law matter, please contact our employment law team on: +44 (0) 1534 632255

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