Absence measurement and management
Learn how to measure sickness absence, the main components of an absence policy, and how to address short- and long-term absence in an organisation.
View our commonly asked questions on the legal issues relating to absence procedures
In addition to the list of legislation given at the end of these Q&As, the Acas Code of practice on disciplinary and grievance procedures is of crucial importance to absence management. For details of the way in which the Code and well-drafted disciplinary, dismissal and grievance procedures may be used to assist employers in certain cases of absence management, see our Discipline and grievance procedures Q&As.
These Q&As address the legalities of handling unauthorised absence, short and long-term leave, seeking medical evidence and the potential repercussions of implementing disciplinary procedures and dismissing employees who are on long-term absence.
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The reasons for sickness absence are sensitive personal data according to the Data Protection Act 1998. The Information Commissioner’s Employment practices data protection code suggests that absence records should be kept separately from sickness records.
The code establishes the general principle that employers should only collect information relating to the health of individual workers if:
Collection of medical records and health information relating to individual workers not covered is likely to be a breach of the Data Protection Act.
The Access to Medical Reports Act 1988 requires the employee’s express consent for the employer to ask their GP for the employee’s medical report.
An employer should draft a consent form for the employee to sign making it clear that they are giving consent to the GP to supply a medical report. In accordance with the Data Protection Act 1998, details of sickness absence and medical reports are classified as sensitive personal data and should therefore not be disclosed to third parties without express consent.
There are also strict rules about patient confidentiality, and no GP will disclose information unless they are sure the employee has consented to its release.
The employer should send the consent form to the GP along with a list of questions relating to the illness/absence and details of the employee’s role. The more information the GP has, the more likely it is they will be able to make an assessment and comment on the suitability of the role and any reasonable adjustments.
The employee should have the reasons why the employer needs medical evidence (for example, to make reasonable adjustments if they have a disability) explained to them. As long as this has been done, the employer is entitled to make a decision based on the facts available.
If the evidence suggests that the absence level is unacceptable, and the employee has not disclosed information regarding any underlying medical condition despite being asked about it, then disciplinary action may be appropriate – provided it complies with the organisation’s own procedures and the provisions of the Acas Code of practice on disciplinary and grievance procedures.
A word of caution: Ignorance is no defence under the disability discrimination provisions of the Equality Act 2010. For example, if an employee is always off sick with epilepsy but will not permit access to medical evidence, an employer cannot say it did not know that the employee had a medical condition covered by the legislation – it should have been obvious from the condition.
Provided that it is properly managed, yes. However, great care should be taken – linking sickness absence to pay rises can lead to disability discrimination claims.
Employers must remember that high levels of absenteeism are usually an indication of an unhappy workforce. Active absence management and attention to employee wellbeing is more likely to have an effect than threats of a pay freeze.
An employer should take legal advice before dismissing an employee in these circumstances.
If an employee indicates in advance that they may take unauthorised, short-term absences during busy periods it is vital that they be warned of the possible consequences.
If the time eventually comes when all procedures have been exhausted, all avenues explored and the job can no longer be kept open, the employee should be fully consulted and informed of possible dismissal. In reaching a decision to dismiss, the organisation’s capability or dismissal procedures must be followed and employers must at least comply with its own procedures and the Acas Code of practice on disciplinary and grievance procedures.
If an employer chooses not to follow such procedures, it must budget to include compensation to the employee should they bring a claim.
Dismissal by reason of capability (including medical incapability) is one of the potentially fair reasons for dismissal in accordance with the Employment Rights Act 1996. However, any dismissal for this reason must be handled fairly as well. If, however, the absences are unauthorised and there is no medical condition, it is more likely that conduct will be the reason for dismissal.
In all cases it is necessary to follow a fair procedure. Failure by an employer to identify the correct reason for dismissal may contribute to a finding of unfair dismissal.
Having identified the reason for dismissal, a tribunal will then consider if the employer followed the appropriate procedures. It is also important that the employer acts fairly in treating the illness as the reason for dismissal. The action taken must always be within the band of reasonable responses.
Factors a tribunal may consider relevant are:
Long-term sickness is not the same as disability. An employee who has been absent long-term on account of sickness may or may not be disabled. There may be issues of prognosis and the employer may be informed of when the employee is expected to recover. With disability this is not the case, although some similar issues do arise regarding making reasonable adjustments.
Before dismissing an employee on long-term sickness absence, an employer should:
Even though employers must obtain medical evidence, they cannot rely unquestioningly on it.
It is difficult for employer to know exactly when it reasonable to dismiss an employee who has been absent from work for an extended period of time due to ill-health.
Employers have to carry out a balancing act when deciding if it would be reasonable to wait longer before dismissing on grounds of ill-health. This involves considering the nature of the employee’s illness, the prospects of returning to work and the employer’s organisational needs. The employee's track record and length of service can be a relevant consideration.
The Court of Session in BS v Dundee City Council (unreported, [2013] CSIH 91 12 November 2013, CS) provided some guidance on this issue. A carpenter with 35 years’ service was absent from work for over a year due to depression and anxiety. The Council handled some things well, seeking regular medical reports from the occupational health nurse relating to his prognosis and likely return to work date. The employee himself indicated that he did not think he was getting any better. The final medical report obtained from an occupational health physician before he was dismissed said that he would be likely to recover within one to three months, but the Council dismissed him shortly after reading the report.
The employee claimed unfair dismissal and the case eventually reached the Court of Session (the Scottish equivalent to the Court of Appeal). The judge said the key test was whether the employer could reasonably have waited any longer and gave the following guidance:
By contrast if the employee is malingering and pretending to be unfit for work there is no universally applicable requirement for the employer to obtain a medical report at all Corus UK Ltd v A.M. Mainwaring (unreported, UKEAT/0053/07 22 June 2007, EAT).
If an employee is dismissed before the contractual or statutory entitlement to sick pay expires, this alone does not make the dismissal automatically unfair.
However, that a dismissal has occurred before a contractual sick pay entitlement has finished may have a knock-on effect on a finding of unfair dismissal because employers must always follow a fair procedure. An employer also cannot automatically presume that it is fair to dismiss when sick pay entitlements expire.
The dismissal may attract increased compensation if the Acas Code of practice on disciplinary and grievance procedures has not been followed.
Dismissal of an employee during a period of long-term sickness can also give rise to a claim for breach of contract.
Not necessarily. As well as contractual terms, employers should also be mindful of the implied duty of trust and confidence. A tribunal will consider the process the employer followed and determine whether or not it was fair.
It is prudent for an employer to seek medical advice to assess whether the employee’s condition amounts to a disability in accordance with the disability discrimination provisions of the Equality Act 2010. The definition of what constitutes a disability can be split into three parts:
If a medical report identifies a disability reasonable adjustments must be made. This legal duty is quite broad and may cover physical adjustments to premises, or the provision of equipment. It can also mean adjustments to the role itself by removing certain duties and reallocating them, changes in hours or place of work, or the provision of further training and supervision. It could also include transferring to any other vacant post (subject to suitability).
No one piece of legislation deals exclusively with absence management. However, numerous pieces of legislation have an impact on it. Some important examples include:
The Working Time Regulations 1998 and other family-friendly provisions and health and safety legislation may also all have an impact on absence issues.
Learn how to measure sickness absence, the main components of an absence policy, and how to address short- and long-term absence in an organisation.
This guide follows the introduction of "fit notes" and focuses on the key behaviours managers need for returns to work after long-term sickness.
Browse through the most frequently asked questions on the legal issues relating to absence management