Legislation overview

No one piece of legislation deals exclusively with absence management. However, numerous pieces of legislation have an impact on this area. For more information see our Absence procedures Q&As.

Absence management continues to be a vital issue for organisations. According to the Office for National Statistics (ONS) figures which were published in October 2015, the UK economy lost 134 million working days to absence in 2014.

The statistics are available on the ONS website

Some absence is always inevitable. Motivation, good health and job satisfaction is crucial, and is the best way to manage short term absences. The following factors will help:

  • Pro-active manager led absence systems and procedures.
  • Good physical working conditions.
  • High health, safety and welfare standards.
  • Pro-active measures to support staff.
  • Training and teamwork.
  • Improving absence record-keeping systems.
  • Providing facts and figures on absence to line managers.
  • Pro-active absence management policies, including return to work interviews.
  • Enforcement of policies on equal opportunities and discrimination.
  • 'Work-life balance' policies including flexible working hours and varied working arrangements, if compatible with the needs of the organisation.

Answer:

In order to manage sickness absences issues it is important to fully understand the extent of the problem. Employers need to distinguish between lateness, short-term absences and long-term absences.

Where the absence consists of lateness or short but persistent and apparently unconnected absences then, after suitable investigation, disciplinary action may be appropriate in some cases. For information on disciplinary and grievance procedures see our Q&As on Discipline and grievance procedures.

The key steps in pro-actively managing short-term absence are:

  • Investigating the level, causes and reasons for absence.
  • Carefully monitoring trends in the particular workplace. Keeping records with accurate information and statistics to fully understand the pattern and reasons for absences.
  • If employers need employees at specific times of the year they must provide for this in their contracts of employment and communicate this clearly to everyone in advance of the period of required working.
  • Employers should take a sensible view of minor unauthorised absences.
  • Discussing any particular problems with the employees concerned. Considering the use of return-to-work interviews with line management and completion of self-certification forms even for one day of absence.
  • Consider praise and financial rewards for employees with the best attendance rates.
  • Authorise reasonable absences to cover medical appointments, including ante-natal care. All pregnant employees, regardless of service, are entitled to reasonable, paid time-off for ante-natal care (and as of 1 October 2014, prospective fathers or the mother's partner can have time off to accompany the mother on to up to two ante-natal appointments).
  • Allow for authorised absence whenever appropriate to cover specific religious observances of minority groups.
  • Consider requesting a medical report to establish if there is any underlying medical condition to support the level of absence; there may be a hidden condition and links to disability discrimination which may not be immediately apparent.
  • Working with employees in connection with GPs' advice to help the employee get back to work where appropriate.
  • If there are no good medical reasons for the absences, the employee should be counselled and told what improvement is expected and warned what the consequences will be if none is seen.
  • If there are grounds to suspect that the employee’s reasons for the absence are not genuine, investigate carefully, discuss with the employee, pursue formal disciplinary action where appropriate, including written warnings and compliance with the organisation’s own procedure and the Acas Code of practice on disciplinary and grievance procedures (Acas Code).
  • Disciplinary action in accordance with the organisation’s procedure, the Acas Code and in compliance with any provisions relating to disciplinary issues in the employee's employment contract may be appropriate, but always treat each case on its merits. For example, if absences were due to domestic problems now resolved it is unlikely that the level of absence will continue, so is it appropriate to discipline?
  • Consider what can be done to assist employees with personal or family problems - would counselling help?
  • If there are medical reasons for the absence, consider any links to the disability discrimination provisions of the Equality Act 2010. For example, does the absence relate to hospital appointments or treatment required? If this is the case, the Act requires an employer to make reasonable adjustments which includes allowing time off for treatment.
  • If the employee has a recognised illness or medical condition that is not a disability but their absence rate is unacceptably high, it may be possible to dismiss fairly for some other substantial reason after following due process. The employee's length of service and the availability of suitable alternative employment are relevant factors to consider before reaching a decision.

Answer:

Managing long-term sickness absence is a difficult process and has the potential to result in claims for unfair dismissal, disability discrimination, stress related personal injury, breach of contract or a payment to settle such claims.

Long-term absence is nearly always the result of physical or mental ill health. High absenteeism or large staff turnover, frequent interpersonal conflicts or complaints by workers are signs that may also indicate a problem of work-related stress. Large organisations may be able to address these problems through more flexible working policies. Carefully monitor trends in the particular workplace. As with all types of absence it is important to keep records with accurate information and statistics to fully understand the pattern and reasons for absences. In smaller organisations there may be a real need to replace the employee which must be handled cautiously and by following both the company's own capability, disciplinary and dismissal procedures and the Acas Code of practice on disciplinary and grievance procedures. The issues to be considered during the process and in meetings with the employee include:

  • Just how much damage is being caused by this absence?
  • How long will the absence continue for?
  • What was the employee’s GP's initial advice on the fit note and what is the GP's or the organisation's doctor's prognosis now?
  • Will there be a full recovery or will a return to the same work be imprudent?
  • Is alternative work available, with re-training if necessary?
  • How long has the employee been working for the organisation?
  • Have all possibilities been discussed with the employee and their representative?

Employers often wonder if it is appropriate to contact employees when they are off sick. If reasonable contact is kept with an absent employee this may facilitate a return to work as soon as the employee has recovered. Evidence suggests that early intervention and support is likely to assist in a return to work at an appropriate time as part of the recovery process. However an employee may feel harassed or bullied by their employer if contact is made too often. In order to maintain contact as part of a pro-active absence management procedure the following points should be borne in mind:

  • The sickness absence procedure should govern how often the employer will make contact with someone on sick leave.
  • Medical advice should be obtained in appropriate cases and the organisation’s policy should explain this.
  • Employers or GPs may refer employees to the government’s Fit for Work service for help managing long term sickness.
  • Employers should be appropriately pro-active in keeping in touch with employees throughout their absence.
  • The sickness absence procedure should specify that employees must maintain reasonable contact with the company during absences. If employees know what to expect, they will not think that the company is harassing them by maintaining regular contact.
  • Employers need to be tactful, sensitive and use common sense. Some employees may resent the intrusion (or be genuinely too ill to come to the telephone); others may feel abandoned if the employer never gets in touch at all.
  • Line managers should be the main point of continuity and contact for an employee telephoning in sick.
  • In some cases home visits may be appropriate.
  • Matters to discuss with the employee include referrals for medical reports and if any temporary adjustments would help the employee return to work.
  • Employers should be up to date with the disability discrimination legislation and make reasonable adjustments where appropriate.

Answer:

The basic system of statutory sick pay envisages that employees will complete self-certification forms for the first seven days of absence and that employers should not normally ask for medical evidence for this initial period. Weekends and bank holidays (when the employee may not normally work) are included when counting the seven days.

As explained below, actual statutory sick pay only applies for absences of four days or more, so only part of the first seven days absence are paid unless the employer adopts a more generous policy.

Self-certification forms usually include details such as:

  • information about the sickness or illness
  • the date the sickness started and ended.

The relevant form is available online on the GOV.UK website: View form

If an employer pays contractual sick pay, or if an employee is frequently sick, some employers unusually request medical evidence during those first seven days of sickness absence. An employer’s policy on sick leave should specify how many days sick leave applies before proof of illness or a fit note is required.

If employers request a fit note for absences of seven days or less, the GP’s practice may charge to provide a fit note and it is usually the employer’s responsibility to pay for this.

For more than seven days absence employers will usually ask for evidence, or proof of the illness, by suggesting the employees obtain a fit note from their GP.

If an employee is under the care of a hospital, the fit note may be issued by the hospital, rather than a GP.

There should not be a charge from an NHS doctor for providing a fit note if an employee is off work sick for more than seven days.

SSP remains payable for any sickness absence of four days or more provided that the employee meets the qualifying conditions. Difficulties may arise where a GP has advised that an employee may be fit for work, but the employee remains off work because the employer cannot provide the necessary support. In such cases employers should treat the note as a ‘not fit for work’ note and pay SSP in the same way.

The Government emphasise in their guide for employers that SSP is only a minimum provision and that if an employer is considering a return to work which involves reduced hours, it may be cost effective for the employer to consider paying voluntary sick pay for the hours not worked due to illness or injury, even when SSP does not apply.

The Percentage Threshold Scheme which allowed smaller employers to reclaim SSP was abolished on 6 April 2014.

Answer:

Fit notes (or fitness for work statements) were introduced on 6 April 2010 to replace the old sick notes and the guidance was updated in March 2013. It was hoped that the fit notes would encourage employees back to work more quickly and ultimately reduce the numbers receiving incapacity benefit.

It is important to emphasise that employers should also be aware of their duties to pay statutory sick pay and make reasonable adjustments under the disability discrimination provisions of the Equality Act 2010. Employers should be wary of contravening these provisions if the employee’s health problems qualify as a disability.

Fit notes focus on the work employees can do, rather than what they cannot do.

GPs can advise that the employee is either:

  • not fit for work, or
  • may be fit for work taking account of the’ following advice’.

It is the second option which reflects the fundamentally different approach from the previous system. An employee may have some health problems, but this does not necessarily prevent them from working. If the GP opts for the second option this means the GP’s view is that the employee’s condition does not necessarily prevent them working. The aim of the fit note is to give employers and employees’ greater flexibility in managing sickness absence. The GP should try to suggest ways of helping an employee get back to work, outlining on the note the work that patients can do in spite of their illness. The GP should give advice about the effects of the employee's health condition and some suggestions about the types of adjustment the employer could consider to help the employee back to work.

The employer can then discuss with the employee appropriate adjustments such as:

  • a phased, gradual return to work
  • altered hours (for example, varied start and finish time)
  • flexible hours
  • time off for treatment
  • amended duties, and/or
  • workplace or equipment adaptations
  • relocating place of work.

Obviously if any of these variations amounts to a variation in the employee's contract then their agreement must be obtained to the change.

Employers are not bound to follow the GP’s advice and if it is not possible for an employer to provide support for the employee to return to work the employer can use the statement for sick pay purposes as if the GP had advised ‘not fit for work’.

The fit note does not include the option for GPs to advise an employee that they are fully fit for work. The Government emphasises that it is a myth that an employee needs to be fully fit for work; employees do not need to be ‘signed back’ to work by a GP. If an employer does want a medical opinion stating that an employee is fit for work this is a matter for a private arrangement with a GP or occupational health specialist.

On the fit note the GP should have stated how long their advice will last for. The employer should then agree a return to work plan with any appropriate adjustments in place for a temporary period. If the employee cannot then return to their normal duties, long term changes may be necessary taking into account the provisions of the disability discrimination legislation. In the first six months of any health condition, the maximum period a GP can issue a fit note for is three months (reduced from the previous six months).

There have been some problems with fit notes which include:

  • GPs having difficulties making the judgements between 'unfit for work' and 'may be fit for some work' as they may not know enough about the nature of the work
  • disagreements between employees and employers concerning the nature of adjustments which are appropriate
  • employees refusing to return to work once adjustments have been made, leaving the employer to decide whether to invoke disciplinary or capability processes, or stop paying statutory sick pay
  • other employees may feel disadvantaged if another employee achieves a variation to their working schedule on what the other employees see as spurious health grounds
  • disability discrimination claims may be generated as a result of refusals to carry out adjustments in appropriate cases
  • possible increased risk of personal injury claims from members of staff who injure themselves while back at work following a fit note saying they may be fit to return.

To try and minimise the risk of the problems highlighted above occurring, employers should have reviewed their absence, return to work and flexible working policies to ensure they are compatible with the fit note system. There should be an appropriate emphasis on returning to work as soon as is practicable. Other documentation which may need checking or amending include standard contract clauses on sickness absence reporting, self-certificate forms, letters inviting an employee to attend a meeting following a period of sickness absence and structures for return-to-work interviews.

Line managers should also be trained in dealing with fit notes, particularly on how to manage the need for appropriate adjustments and the length of time those should last for and managing other employees' expectations or concerns over such arrangements.

There is a range of guidance and advice, including a sample fit note, available on the GOV.UK website.

Answer:

The Government’s Fit for Work service is available across England, Scotland and Wales, offering help to employers who are managing employees on sickness absence.

The free service is open only to employees who are absent from work, not those who are still at work, the self-employed or agency workers. A website and telephone advice line is also available to supply independent, work-related health advice.

Main elements of Fit for Work

The service is free and voluntary for employers and employees to use and consists of the following elements:

  • An employee who is off sick for four weeks will be referred to the service by their GP unless there are clear and well defined reasons for not doing so.
  • An employer can refer an employee if the GP has not done so. An employer can refer an employee if they have been absent for at least four weeks, but a GP may do so earlier if they foresee that the employee is likely to be off for four weeks or more.
  • Employers, employees and GPs will be able to access advice via a phone line and website. 
  • The service will encompass telephone assessments by a Case Manager (with face to face assessments expected only in a minority of cases).
  • There can only be one referral per employee in any 12 month period.
  • The Case Manager makes a ‘biopsychosocial holistic assessment’, addressing various matters including any obstacles which are preventing the employee from returning to work. This may include personal, health, social and financial issues.
  • The Case Manager writes a Return to Work Plan which advises upon what the employer can do to assist a return to work. This plan can replace a GP’s fit note for the purpose of statutory sick pay.
  • Employees may still need a fit note to cover the period between the referral to the service and the production of the Return to Work Plan.
  • Employers do not have to act on the recommendations to assist the employee back to work but are encouraged to do so.
  • There may be more than one assessment if appropriate.

Previously if a fit note declared an employee to be completely incapable of work, the employer had no options to help the employee back into work. The service is effectively a broker between the employer and employee. It is intended to complement, rather than replace, existing occupational health provision and to fill the gap in support where that previously existed.

Tax exemption

There is a tax and National Insurance Contribution (NIC) exemption for employers on expenditure up to £500 on medical or health treatment if recommended either under a Return to Work plan or by a healthcare professional in an existing occupational health service.

This exemption came into force on 1 January 2015. Information is available on the HMRC website.

Employee's consent

The employee must consent at every stage of the process. Without the employee’s consent a referral to the Fit for Work service cannot be made. 

Employers can consider incorporating express contractual terms into employees contracts to say that all employees must co-operate with a referral to a Fit for Work service. Whether employers want to do this will depend upon how useful the service is in reality.

If there is no contractual clause requiring co-operation and the employee fails to co-operate and fails return to work, it will then be for the employer to deal with this situation in the normal way by following absence management procedures.

Other points for employers

Sickness absence policies should be amended to reflect the new scheme and managers need to be trained in when and how to implement referrals.

Employers should be aware of potential disability discrimination claims as telephone based health assessments are too limited for assessing complex health difficulties. Employers cannot hide behind the scheme and avoid spotting potential disabilities and making reasonable adjustments for them. An employer who has complied with a Return to Work Plan may still face a disability discrimination claim.

It remains to be seen whether the Fit for Work service is of more assistance than the fit note system which did not bring about significant changes as was hoped.

The Fit for Work websites for England and Wales and Scotland provide details of the service and a range of resources including guidance for employers, employees and GPs.

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