Managing Sickness Absence Dr Karen Nightingale Who would

Managing Sickness Absence Dr Karen Nightingale

Who would it be in your company?

Source: all tables and graphs from 2015 CIPD survey

Any questions?

The Legal Angle Sickness Absence Theory & Practice Peter Byrne Employment Partner Taylors Solicitors

Managing Sickness Absence • Creates both legal and HR issues • Persistent short term absence • Long term absence • Equality Act 2010 • Practical issues and guidance

Where do we start? • Each case turns on its own facts • Lynock V Cereal Packaging Limited 1998 • Starting point for employer • sympathy • understanding • compassion

Where do we start? Importance of documents • Need an Absence Management Procedure • contract of employment • staff handbook • This procedure must be fair and also applied fairly over a reasonable period of time • Whilst having a procedure, always be aware that every set of facts is different & so be prepared to show some flexibility • Starting point is always obtaining information • nature, extent, likely cause and expected duration

Absence Recording • Short term absence • Not usual to seek professional medical opinion • Monitoring absence The Bradford Factor is a simple formula to help you manage short term sick absences and determine when these have become excessive The calculation for the Bradford Factor (B) is Number of Occasions Sick (S) x Total Number of Days Absent (D): B = S² x D

Absence Recording Example • John has been off work for 10 days in total this year, but has accumulated this in 7 days worth of single days off and 1 period of 3 days off • Score = 8 x 10 =640 Compare with: • Jim has had one period off of 10 days • Score = 1 x 10 = 10 • Highlights employees with a high level of intermittent absence

Absence Recording What use is this? • Policy or procedure should contain “triggers” • If a score is reached, this triggers some action • Again, need to have some flexibility • • absence could be disability related Will not be discovered without a proper investigation, which should always start with a return to work interview that is recorded in writing

Return to Work Interview Formal meeting – but what to discuss or record? • Explore: • the affect of the absence on colleagues & on the business • is the level of absence likely to continue? • are there any changes that can be made to reduce absence? • is there an underlying condition causing the absence? • is a formal warning appropriate? • If so, clearly document the expected improvement and the consequences of not improving • forms part of a process which, ultimately, may lead to dismissal

Long Term Absence Procedure to be detailed in policy • Investigation • Medical evidence and consent • Make decisions based upon the most up to date information • Meeting to discuss: • • are you likely to be able to return to work? likely date? is employee disabled? are reasonable adjustments to role possible? are there any alternative roles? other options e. g. ill health retirement logistics regarding return e. g. phased, supervised

Long Term Absence • No prospect of a successful return within the foreseeable future • No amendments to the job role that would make a difference • No alternative role available that can be undertaken • Then hold formal meeting to consider dismissal • Always advise of right to be accompanied • Always advise in writing that a possible consequence of the meeting may be the termination of employment • Don’t forget the right to appeal • Will always need up to date detailed medical information

Equality Act 2010 • Disability discrimination • Definition: • a mental or physical condition • that condition has a substantial effect on employee’s ability to carry out day to day activities • the effect is or is likely to be long term • But what does that mean to me? • Need to consider whether you need to make any reasonable adjustments to enable the employee to work • Start with existing road • If no adjustments, look at alternative role • Then and only then can you dismiss i. e. there are no reasonable adjustments to the role or an alternative role that enables the employee to return to work

Equality Act 2010 What problems can this cause me? • Direct discrimination • Unfavourable treatment because of something arising from a disability • Indirect discrimination • Failure to comply with duty to make reasonable adjustments • Harassment relating to disability • Victimisation • Asking pre-employment health questions other than for a prescribed reason • Knowledge of disability is required, or alternatively, in the circumstances, a reasonable employer ought to have been aware of the disability

Equality Act 2010 • Exercise caution re mental health issues • Hidden disguised conditions • Underlying conditions • Stress, anxiety and depression • Have to discount treatment or other coping strategies • Assess effect cumulatively on day to day activities

Specific Example • Employee failed to mention her history of stress and depression in a preemployment medical questionnaire • “Do you see yourself as disabled? ” She said "no" • She was then asked whether she enjoyed good health. She replied, "yes" • Council claimed that she had completed this form in a fraudulent or negligent way that induced the council to give her a contract • Council sought to recover nearly £ 1 million • Looking at the form she had answered correctly, so no misrepresentation took place • Cheltenham Borough Council v Laird (2009)

Specific Example • Employee had diabetes and needed insulin injection and food when appropriate to control the condition • Blood sugar levels needed frequent monitoring • Condition was known to employer • Manager put the employee on poor performance plan, discouraging him from leaving desk to conduct tests • Employee suffered a hypoglycaemic attack as a result of his reluctance to test himself at his desk • Employee who had diabetes and who was not given a suitable place to carry out test and who was discouraged from doing so away from his desk had been subjected to discrimination • British Telecommunications v Pousson 2005

Specific Example • Claimant was bus driver who suffered from type 2 diabetes • Controlled predominantly by avoiding sugary drinks • Employment Tribunal found he was disabled • On appeal, found that abstention from sugary drinks could not be constituted as having a substantial adverse effect on day to day activities • The driver’s type 2 diabetes did not, of itself, amount to a disability; merely changing one’s diet is not considered a treatment • Metroline Travel ltd v Stoute (2014)

Knowledge of Disability • External OH advisers identified “stress related symptoms” but not disability • Employer could not rely exclusively on the advice from OH to claim no knowledge of disability • Have to form their own judgment • Have to consider all relevant facts • Simply could not rubber stamp the adviser’s view without question • Gallop v Newport City Council (2014)

Knowledge of Disability • D was employed for 11 years • Last year of employment she had 128 days off with different reasons for her absence • Suffered from a variety of health issues: hypertension, work related stress • Refused to allow OH to contact her GP • D was referred to OH • Employer asks if there is a medical condition to explain her absence • OH advises not disabled, but does not directly answer the question • D dismissed for persistent short term absences • ET dismissed claim holding that employer had neither actual nor constructive knowledge that employee was disabled – upheld on appeal • Donelien v Liberata (2014)

Reasonable Adjustment • Employee absent with work related stress and depression • Referred to consultant psychiatrist to identify steps to facilitate return to work • Recommendation – employer pays for private psychiatric services, including CBT • Employer failed to act on recommendations • Did not engage with employee, who resigned and claimed constructive dismissal and discrimination • EAT stated that provision of specific psychiatric support to help employee deal with the pressures of work was a reasonable adjustment • Not payment of private medical fees in general • Croft Vets Ltd v Butcher (2013)

Fit for Work Scheme • Access at employer level to address sickness absence among employees • Professional OH services through advice service, phone line and referral • £ 500 per head per year tax break on medical treatments to help employee back to work • Assessment made after referral • Return to work plan coordinated • Down side – delay and under resourced

Conclusions • Healthy workers are the key objective • Don’t let things drift, but deal with problems early • Use HR and OH promptly • Have a written procedure • Have regular contact • Keep notes • Get a support and return to work plan agreed by all • Continue to monitor • Never forget the need to identify if on-going support required

Employment Law Update Andy Herricks Corporate Partner Taylors Solicitors

Unfair Dismissal: Monitoring Employee’s use of the Internet Barbulescu v Romania • Barbulescu was an engineer using his employer’s business Yahoo Messenger to send personal messages • In breach of his employment contract • Employer discovered the use accidentally, but then dismissed him • Argued that evidence of personal messages infringed his right to privacy • Article 8 was engaged – but court could look at the evidence • Need to verify employees completing work during working hours

Unfair Dismissal: Monitoring Employee’s use of the Internet Barbulescu v Romania • Article 8 was engaged – but court could look at the evidence in deciding whether the dismissal was fair • Precise content of personal messages not considered • Only relied on the fact that they were personal messages • Need for employers to verify employees completing professional tasks during working hours

E-mail monitors and Privacy Garamukanwa v Solent NHS Trust • Claimant was clinical manager for the Trust • Suspected of having a personal relationship with a colleague (Ms M) • Claimant not happy at “rumours” • Management received malicious e-mails from fictional addresses • Ms M concerned that Claimant was now harassing and stalking her

E-mail monitors and Privacy Garamukanwa v Solent NHS Trust • Investigation undertaken • Claimant’s phone contained items of concern that implicated him and linked him to the e-mails • Dismissed for Gross misconduct • Claimant argued that the employer had acted in breach of his right to privacy by investigating matters relating to his private life. Article 8

E-mail monitors and Privacy Garamukanwa v Solent NHS Trust • Tribunal rejected this argument • Article 8 not engaged as e-mails had potential impact on work and, at least in part, addressed work related matters • EAT agreed • Article 8 protects right to privacy, but not when impacting on work related matters and e-mails were sent to work addresses of the recipients

E-mail monitors and Privacy Garamukanwa v Solent NHS Trust • Colleagues were distressed • Affected their work • Brought into question Claimant’s judgment as a manager

Repudiatory Breach by Employer Gibbs v Leeds United Football club • Claimant was assistant manager of club • Manager with whom he worked was sacked • Asked if he wished to become Head coach – declined • Expected to be dismissed • Asked to continue in his role while discussions were held about a consensual departure

Repudiatory Breach by Employer Gibbs v Leeds United Football club • Claimant was not expected to work with the new manager • Played no meaningful part training first team • Not invited to pre–season training • Told by e-mail to have no contact with the first team, but would work with the youth academy • Resigned in response

Repudiatory Breach by Employer Gibbs v Leeds United Football club • High Court held there was no breach of contract on his part to initiate a discussion about consensual termination • The fact that he was prepared to leave if suitable terms were available was irrelevant • Remained ready and willing to fulfil his duties • E-mail was repudiatory loss of status and he resigned in response

Handbooks Department of Transport v Sparks • Dispute re parts of department’s handbook • 7 Claimants obtained a declaration in the High Court that certain clauses in the handbook had contractual effect • Included short term absence policy • If contractual, restricted managers’ scope for tasking disciplinary action

Handbooks Department of Transport v Sparks • Specific triggers included • 21 days of short term absence in any 12 months • High court considered the documents had a distinct flavour of contractual incorporation • Was held to be much more than a “framework” within which to approach matters

Disability discrimination Carreras v United First Partners Research • Claimant was disabled following a cycling accident • He stated that the Respondents imposed a requirement for him to work late • Tribunal dismissed his grounds as there had been no coercion • Tribunal did find he had been placed at a disadvantage, but this was not the same as pleaded in his claim

Disability discrimination Carreras v United First Partners Research • EAT found that this was “an exercise in semantics” • An overly technical or narrow approach should not be adopted • Although a simple request cannot be a PCP, the Respondent had done more in this case • Found that there had been an expectation and an assumption that he would do so

Discrimination- religious beliefs 3 new cases • Wasteney v East London NHS Foundation • Disciplinary action taken against Christian Senior Manager • Junior employee complained about religious “grooming” • Employer was entitled to deal with this as serious misconduct • Blurred the professional boundaries and the subjection of a junior employee to improper pressure and unwanted conduct

Discrimination- religious beliefs 3 new cases • Pendleton v Derbyshire County Council • Claimant was teacher with long, unblemished record • Her husband, a Head teacher, was convicted of making indecent images of children and voyeurism • School dismissed the Claimant for failing to end the relationship with her husband • PCP – requirement to end relationship with convicted sex offender

Discrimination- religious beliefs 3 new cases • Pendleton v Derbyshire County Council • Claimant’s Christian belief meant she held marriage to be sacrosanct • There was no justification for the dismissal • Claimant faced a crisis of conscience, that created unlawful discrimination

Discrimination- religious beliefs 3 new cases • Achbita v Centrum voor gelijkheid van kansen en voor racismebestrijding • Three years onto her employment at a Belgian security firm, a Muslim employee began to wear a headscarf at work • Company rule – wearing of any visible signs of political, philosophical or religious belief was prohibited • Claimant was dismissed

Discrimination- religious beliefs 3 new cases • Neutrality policy not restricted to religious beliefs • At most, indirect discrimination • Capable of objective justification as an occupational requirement • Each case re justification will be fact specific

Disclaimer The laws in relation to this presentation are complex and the presentation, slides and any accompanying hand-outs are not legal advice

Please get in touch… Peter Byrne Employment Partner peter. byrne@taylors. co. uk 07739 945189 01254 297920 Andy Herricks Corporate Partner andy. herricks@taylors. co. uk 07814 448663 01254 297900 Or find us on Linked. In