Repetitive Short Term Absence
With the spread of swine flu, sickness absence is going to be a hot topic in the coming months.
Although employers should never try to press those with contagious illnesses like flu to come into work, the inconvenience of genuine sickness absence is not normally taken to heart. However, repetitive short term absences can put a considerable strain on staff and can have a significant impact on an employer’s business effiency. It is often more annoying and costly than long term sickness absence because the unexpected nature of such absences makes them more difficult to plan for.
As we discussed last month, tackling ill health absence is always a sensitive issue but an employer is entitled to take a view that it can only tolerate a certain level of intermittent sickness absence and that any employee who exceeds that level should be subject to disciplinary action.
If this is the approach adopted, it is important that there is a sickness absence policy, or some other written guidance in place, which sets out clearly for both the employer and the employee what level of attendance is required. It is then important that employers stick to the ‘triggers’ identified in such a policy so as to avoid any suggestion that one employee is punished where another is not. This also helps to minimise the risk of employees linking such differences in treatment back to discrimination or other unlawful practices.
If an employee takes every Monday or every third Friday in the month off, then the pattern of short term absence is easy to spot. The employee in question may well be genuinely unwell on each and every occasion of absence but it is undeniable that the “duvet day” is a growing phenomenon. Unfortunately, most ‘patterns’ will not be so obvious. It is therefore particularly important that employers keep accurate records of absence, and the reasons given for that absence, so that they are able to build up a picture of the level and patterns of absence.
The three most common ways of measuring absence levels are:
- The lost time rate – this shows the percentage of the total time available which has been lost because of absence;
- The Bradford index – this is a commonly used system which penalises repeated short term absence;
- Frequency rate – this method calculates the average number of absences per employee.
Whatever method is used and what levels of absence is set as the ‘trigger’ for further action, it is important that these facts are commonly known within the business and that they are applied consistently. It is also worth noting that absence patterns do not always fall into the employers considered ‘trigger points’ but this should not prevent an employer from taking formal action to address the problems caused by a high level of sickness absence in appropriate circumstances.
Return to work interviews
Although an administrative burden, conducting a return to work interview after every single absence can be a useful deterrent to those who are tempted to take the odd day’s ‘extra holiday’ here and there. Questioning the reasons for an employee’s absence should always be handled sensitively but the employer is entitled to ask why an employee has not been at work and should keep records of the answers given. The return to work interview is also an ideal opportunity to raise concerns with employees whose levels of absence are starting to become a problem.
Employers should always use the interview to enquire whether there could be an underlying medical cause for the high absence rate or whether there is some problem at home or at work which has not previously been disclosed. For example, if a particular employee is frequently off work due to headaches, there may be an underlying and more serious cause that has not yet been identified by their medical professional or which you have just not been told about. Even if there is no medical condition known to the employee it is advisable for employers to ask an employee questions about the medical treatment that they are receiving and suggest that the employee seeks further medical advice to ensure that there is not a more serious problem. It is also an opportunity to consider whether reasonable adjustments to the role or to the employee’s working conditions are required or could assist. Especially as more serious medical conditions are not the only reasons for repetitive short-term absence.
Often, the true cause of absence is a difficulty at home. As the new ACAS Guidance, which accompanies the Code on disciplinary and grievances points out, if the intermittent absence is actually being caused by problems relating to an employee’s dependants, the employee should be encouraged to utilise any legal rights that they have under the Employment Rights Act 1996 for time off to deal with such issues. Considerations could also be given to more flexible working patterns if the issues are childcare-related.
However, the return to work interview can also be an ideal opportunity for an employer to explore, in a fairly informal setting, if there is anything else at work which could be contributing to the absence. Problems with another member of staff, difficulties with work-load or stress can all lead to someone taking more time off than they have previously. Tackling the concerns raised can often rectify the absence problems.
However, it may just be that the employee is malingering. If there are no acceptable reasons why an employee has been absent, then this is a misconduct issue and should be dealt with under an employer’s normal disciplinary procedure. In all cases, where an employer considers that an unacceptable pattern of absence is developing, the employee should be told what improvement in attendance is expected and should be warned of the likely consequences if this does not happen. If there is no improvement, then formal disciplinary procedures should be engaged.
The important thing to remember about any ill health issue is that whilst there needs to be a consistent approach, each employee’s reasons for and patterns of absence will be different. Although the ‘trigger points’ and the sickness absence policy will provide guidance, it should be considered merely as a guidance with an employee’s particular circumstances being thoroughly reviewed before any decision is made. This is because, to minimise the risks of a claim being brought, external factors also need to be considered. For example, whether or not the individual is disabled and could benefit from protection under the Disability Discrimination Act.
Once the surrounding circumstances have been considered, the employer should also take into account the employee’s length of service, the nature of the employee’s post and the impact that their repetitive absence is having on the business. However, if all of these factors have all been taken into account, there is no reason why disciplinary action, and ultimately dismissal, cannot be fair provided a fair process is followed.
Employers should always follow their disciplinary policies but, under the new ACAS Code, a fair procedure requires the employer to write to the employee, inviting him or her to a disciplinary meeting, hold a meeting and then write to the employee to confirm the employer’s decision in writing. The employee should also be given a right of appeal against any sanction imposed.
Particularly at the earlier levels of dealing with repeated intermittent absence, the employee is most likely to be given some level of written warning. This should include a specific reference to the improvement in attendance that is required and the timescale within which the ongoing level of absences will be monitored.
A common concern in this area is the employee who behaves for the period of the warning, but then immediately recommences their previous pattern of absence. In these situations, the employer does not necessarily need to start again with a first written warning, but should consider whether it is appropriate to enter the disciplinary procedure at a more advanced level of sanction. However, before doing so, consideration will need to be given to whether this is a fair and reasonable stance to take.
Although this is another example of a slow and laborious process for employers, taking strong action can deter other employees from embarking on a similar course of action. An increasing number of organisations have chosen to tackle short term intermittent absence by introducing an attendance bonus. It could be argued that such bonuses merely reward staff for doing what they should be doing anyway – attending work. However, it can be a useful way of drastically reducing absence rates in businesses which are severely affected by short term absence issues. Having said that, disciplinary action, though slower, is often cheaper and more likely to have an immediate impact.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Sunday 15th May 2011