Absence procedures Q&As

The reasons for sickness absence are categorised as sensitive personal data under the Data Protection Act 2018. The Information Commissioner’s Guide to Data Protection 2018 suggests that absence records should be kept separately from sickness records.

The guidance establishes the general principle that employers should only collect information relating to the health of individual workers where:

• express, freely given consent has been provided by the worker(s) concerned, or
• collection is necessary to enable compliance with the employer’s legal obligations, for example to prevent breaching the health and safety regulations and/or anti-discrimination rules.

Collection of medical records and health information relating to individual workers not covered by these two categories is likely to be a breach of the Data Protection Act 2018.

Until the introduction of the Data Protection Act 2018 the Access to Medical Reports Act 1988 was all that the employer needed to comply with in order to obtain a medical report in relation to an employee. Now it is necessary to be satisfied that the sensitive personal data is being acquired for both a 'specific' and 'lawful' reason. These include dealing with long term sickness absence, determining PHI or ill-health retirements, and complying with a duty to make a reasonable adjustment. Once this condition is satisfied, the employer must also comply with the Act and obtain the employee’s express consent to asking their GP for a medical report on them.

Consent

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 2018, details of sickness absence and medical reports are classified as sensitive personal data and should 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 necessary adjustments to that role.

The employee should have the reasons why the employer needs medical evidence explained to them (for example, to make reasonable adjustments if they have a disability). 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.

Nevertheless the Equality Act states that knowledge of the type and effects of disability will need to be established for an employer to be liable for acts of discrimination arising from disability (such as not providing enough rest breaks to suit the disability) and also for being required to make reasonable adjustments.

Provided that it is properly managed, yes. However, great care should be taken – linking sickness absence to withholding pay rises can lead to disability discrimination claims. Be aware also that, for women on sick leave whilst pregnant, action such as this could be pregnancy-related discrimination and, for age-related sickness absence, possibly age discrimination.

Employers should ensure they have:

• a capability-based disciplinary process in place, explaining the levels of absenteeism which are unacceptable and the consequences of sickness absence beyond a specified level (based on carefully kept records) and over a set period
• complied with the Acas Code of practice on disciplinary and grievance procedures and the organisation's own procedures, and carried out a full disciplinary investigation and hearing before taking any action.

Employees may claim they have a contractual right to a pay rise depending on what has happened in the past. They may seek to rely on 'custom and practice’ and although this is unlikely and often difficult to prove, employers should consider it.

A financial incentive for good attendance may produce better results than a deduction system but, again, employers should be mindful of possible 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 to warn them of the possible consequences. Employers should make enquiries as to why they propose to do this. Their answers may relate to unexpected caring responsibilities (for which an employee can take unpaid dependent care leave) or a long-term caring responsibility which might lead them to take this course of action if things are deteriorating.

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. Alternatively the fair reason for dismissal could be ‘some other substantial reason’ (see, for example, Kelly v Royal Mail (2018), where the employee had a record of persistent absences - some for ill-health reasons - and the tribunal found that the employer could no longer expect the employee to give good service).

In all cases it is necessary to follow a fair procedure. An employer failing to identify the correct reason for dismissal may contribute to a tribunal finding of unfair dismissal.

Having identified the reason for dismissal, a tribunal will then consider if the employer followed the appropriate procedures. It is 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:

• The nature and length of any illness or disability.
• Past service and record.
• Any demonstrable improvement in the attendance record.
• The effect of continued absence on colleagues and the effect of the absence on the employer’s services. Tribunals must consider the size and administrative resources of the business when assessing whether the actions were reasonable.
• Whether there are any offers of alternative employment. This perhaps has more relevance in relation to employees on long-term sickness absence but will also be relevant in the context of an employee who may have a disability.

The disability discrimination provisions of the Equality Act 2010 require an employer to make reasonable adjustments and this can mean looking at alternative employment. The employer will also be expected to have consulted with the employee as to the nature of their illness as well as what steps could be taken to maintain better attendance at work (see East Lindsey District Council v Daubney (1977) where the court said 'if an employee is not consulted and given an opportunity to state their case then an injustice may be done').

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:

• take reasonable steps to consult the employee,
• take reasonable steps to ascertain whether any applicable pension scheme provides for an enhanced pension on ill health retirement, and
• consider the possibility of alternative employment.

Even though employers must obtain medical evidence, they cannot rely unquestioningly on it. They must make additional enquiries of the employee themselves in order to reach a decision (see Gallop v Newport Council 2013).

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 (the Scottish equivalent to the Court of Appeal) in BS v Dundee City Council (2013) 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 local authority handled some things well, such as 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 local authority dismissed him shortly after reading the report.

The employee claimed unfair dismissal and the case eventually reached the Court of Session. The judge said the key test was whether the employer could reasonably have waited any longer and gave the following guidance:

• The critical question is whether a reasonable employer would have waited longer before dismissing and, if so, for how much longer.
• Reasonable steps should have been taken to discover the employee's medical condition and likely prognosis.
• Relevant factors regarding the length of time to wait include whether the employee has exhausted sick pay, the availability and cost of temporary staff, and the size of the employer.
• Other factors include whether the employee had been consulted, whether the employee's views had been taken into account and how the employee’s views were balanced against any doctor’s opinion.
• Although length of service is not always relevant, it can help decide if the employee would normally be likely to return to work as soon as they can. This can be assessed with regards to length of service and previous attendance record.

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. On this situation, see Metroline West v Ajaj (2015). The employee was dismissed for conduct and not capability as he had been found to be dishonest in 'pulling a sickie'. He had committed a fundamental breach of trust and confidence. Note that an employer may wish to use surveillance if they have suspicions about an employee’s genuine absence for sickness. Any use of CCTV must be in accordance with requirements under the Data Protection Act 2018. Furthermore, employees may raise the issue that surveillance is intrusive and breaches their right to privacy under the Human Rights Act 1998, but these arguments seldom succeed in tribunals.

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 under s 124A of The Employment Rights Act 1996 if the Acas Code of practice on disciplinary and grievance procedures has not reasonably been followed.

Dismissal of an employee during a period of long-term sickness can also give rise to a claim for breach of contract. This is largely relevant where the employee is the beneficiary of either a contractual term which states the exact circumstances in which they may be dismissed (which is very rare) or more commonly where they are dismissed whilst in receipt of some form of long term ill-health benefit covered, for example, by private health insurance (see Awan v ICTS UK Ltd (2018), where the dismissal was also found to be disability  discrimination).

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:

1. The employee must be suffering from a physical or mental impairment.
2. The impairment must have a substantial (more than minor or trivial) adverse effect on the ability to carry out normal day-to-day activities.
3. The effect must be long-term (have already lasted for at least 12 months or be likely to last that long).

If a medical report identifies a disability, reasonable adjustments must be considered. 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). Note that if the employer can show that it has made considerable attempts to make an adjustment but finds that no options are viable or possible, it will have complied with s20 of the Equality Act to address that duty. Identifying a reasonable adjustment may be particularly problematic where there has been a lengthy sickness absence or frequent absences with a long- term mental health condition. Case law indicates that it is advisable to consult with the employee as to the nature of an adjustment being considered but the final decision is the employer’s.