Emergency Leave
Q: What is the basic legal position when employees do not turn up for work?
A: The basic law underlying these cases is that employees have no right to be paid unless they turn up for work. The fact that employees may be prevented from attending work owing to unavoidable travel problems has no impact on the legal position.
Q: What options are available to me?
A: Bearing in mind the basic legal position, a number of options are open to employers. Employers may also consider taking a combined approach - for example granting a proportion of paid leave followed by a proportion of unpaid leave. Other options include:
- choosing to pay employees as normal, taking the view that the circumstances are beyond their control. Employers may or may not wish to take into account the effort employees have made to try to attend work via alternative travel arrangements, although this is difficult to quantify.
- treating the employee’s time away from the office as part of their holiday allowance and reducing their entitlement accordingly. While in many respects this may seem kinder than docking pay, you may discover that some employees would prefer a reduced salary (see below). Financially speaking, these two options may have a similar economic impact on the business.
- Finally, if the employee is able to work from abroad, for instance if they are stranded abroad on business or if work can be carried out remotely by email, phone etc, treating the time away in the same way as if the employee was in the office.
Q: Can I discipline an employee in these circumstances?
A: Employers should note that whilst a failure to turn up to work is technically a disciplinary offence, in circumstances beyond the control of employees it would probably be unfair for the employer to take disciplinary action if the employee has either attempted to get back to the UK, or has taken all reasonable steps to try to do so.
Sickness Absence
A: The issue of managing sickness absence is often a matter that needs to be dealt with sensitively. Every employee will probably need to take sick leave at some point during their working lives, and in most cases this will only extend to a few days. However, long-term sickness absence can have devastating effects on a business’ performance and the health and well-being of other employees. Sickness absence costs:
- UK PLCs over £12 billion a year;
- Employers £495 a year per worker employed in direct costs. Indirect costs are probably considerably more.
Q: The financial implications speak for themselves. If we are talking about someone who is genuinely sick for a long period, what do I need to bear in mind?
A: The Health and Safety Executive have set out four basic principles which underlie the management of sickness absence.
- Sickness absence is not just a matter of ill-health. It is affected by a combination of the health condition, personal and work/organisational factors. The last two factors increase in importance subject to the length of the absence.
- Early intervention is key- the sooner action is taken, the better the chance of an employee making a full and speedy return to work.
- Working in a well-managed workplace is a treatment for people recovering from sickness absence, and an early return to work improves both mental and physical recovery.
- Simple adjustments can enable workers to return to work safely before their symptoms completely disappear. Workers can normally return to work before they are 100% fit.
Q: What, specifically, is involved in managing sickness absence?
A: Essentially the management of sickness absence can be reduced to six key elements.
- Recording sickness absence
- Keeping in contact with the employee
- Planning and undertaking workplace adjustments
- Using professional or other advice and treatment advice
- Agreeing and reviewing a return to work plan
- Co-ordinating the return to work process.
Q: Are there any practical measures I should undertake?
A: You should consider putting in place policies and procedures to manage sickness absence and return. You may already have some elements of a policy in place but is worth reviewing them for their effectiveness. In particular, you might need to take a fresh look at how you:
- Work with your employees (and any Trade Union representatives) in developing policies and procedures;
- Train your line managers in managing sickness absence and those employees who are returning to work;
- Record, monitor and measure sickness absence and how you use that data at an organisational level;
- Keep in contact with absent employees and plan together their return to work;
- Access professional or other advice and treatment to help your employees;
- Control any risks to your employees from work activities, especially those with continuing poor health;
- Introduce reasonable adjustments to enable disabled workers to work;
- Open and constructive discussion between all parties is essential for successful management of a sickness absence and a return to work. It is often convenient to set down expectations, roles and procedures so everyone knows who is responsible for taking action and what they should be doing.
Q: Are there any particular legal ramifications I should be aware of?
A: You need to bear in mind the following legislation when managing sickness absence:
Disability Discrimination Act (DDA) 1995 and Equality Act 2010
Disabled employees are protected by the Disability Discrimination Act, which has now been incorporated into the Equality Act. This legislation requires employers to make reasonable adjustments to disabled employees’ working arrangements or conditions to make sure they are not treated less favourably than other employees. Employees whose mental or physical condition persists may be eligible for protection under the legislation.
Health and Safety at Work etc. Act (HSWA) 1974
Employers also have responsibilities under the Health and Safety at Work Act to protect employees, after they return to work, if they have become more vulnerable to health and safety risks because of illness, injury or disability.
Employment Rights Act 1996
Fair procedures must be adopted prior to dismissing an employee on the grounds of sickness absence.
Data Protection Act 1998
Any sickness absence data you keep and process has to comply with the Data Protection Act 1998. If an absence record contains specific medical information relating to an employee this is deemed sensitive data and you will have to satisfy the statutory conditions for processing such data.
Access To Medical Reports Act 1988
Employers have to ensure that they get consent from employees before seeking a medical report on their health condition and copies of any report should also be provided to the employee before the employer receives it from the health professional.
Q: Any other pointers?
A: Employers might bear in mind the following:
Do:
- Create a climate of trust by agreeing beforehand methods, frequency and reasons for keeping in contact with absent employees;
- Consider training for managers on a sensitive approach to help them get the most out of the contact with the absent employee;
- Keep a note of all contact made;
- Be flexible, treat each case individually but on a fair and consistent basis;
- Welcome employees back to work following their absence;
- Carry out return to work interviews;
- Give employees the opportunity to discuss, in private, concerns about their health or other matters that are affecting their performance or attendance; and
- Remember that medication can have side effects on physical stamina, mood, machinery operation and safety critical tasks.
Don't:
- Wait until someone is on long-term sick leave before taking action;
- Delay making contact, and do not pass responsibility to others unless there are good reasons for doing so;
- Make assumptions about an employee’s situation;
- Tell the absent employee that colleagues are being put under pressure or that work is piling up; and
- Forget that recovery times for the same condition can vary significantly from person to person.