When an employer is faced with an employee who has been off on long term sickness absence, they often feel more certain about how to manage this type of absence, and what stages they need to go through in order to do so. Long term absences will be supported by medical certificates and other medical or occupational health guidance will often be sought to consider prognosis, duty to make reasonable adjustments (if applicable under the Disability Discrimination Act 1995) and prospects of a return to work.

But what about persistent short term sickness absence? These absences can be trickier to deal with because there is often no single causative factor for the absences. An employee may have five occasions of absence for a variety of different reasons, with most or all without any medical certification due to their duration. Whilst understanding that employees may get sick from time to time and so be unfit for work, this must be balanced with the disruptive impact of absence of this type to business and fellow colleagues. Effective and consistent management of short-term absence is therefore best dealt with through the introduction of a policy on attendance or short term sickness absence.

In this article, we provide our top policy and procedure tips for dealing with short term sickness absence.

1. Clarify when absence will become a formal issue by setting trigger points ⚓︎

Setting out trigger points in an attendance or short-term absence policy is beneficial because it provides a clear point at which management knows it can step in to formally investigate absence levels and helps employees to understand why their absence has become an issue.

As an employer, you will first and foremost need to consider the trigger system you will use that will best suit the business and what it is trying to achieve. For example, an employer may have issues with high volumes of short-term absence, maybe lasting no more than 1 or 2 days. In that case, they may wish to set a trigger point linked to the number of days absent in a 12-month period.

Employers may count periods of absence rather than individual days, for example, an employee who was off sick for 1 week would have one period of absence with a maximum of three permitted before the trigger point is reached.

Employers may also use a more formulaic approach to track absence, the Bradford Factor being a common means of measuring absence levels.

Whilst use of trigger points is beneficial for ensuring the fair and consistent management of employee absence across the business, employers should always bear in mind the need to exercise discretion in cases of absences that could be disability or pregnancy related. Absences in these cases should be carefully considered and discounted as necessary, otherwise employers risk challenges on discrimination grounds.

Depending on the nature of a disability, an employee may have higher instances of absence as a result. Therefore, the use of trigger points could amount to a provision, criterion or practice (PCP) that has a disadvantageous impact on them as compared with a non-disabled colleague. Adjustments to the trigger points for an employee may therefore be required by way of reasonable adjustment (see Northumberland Tyne & Wear NHS Foundation Trust v Ward UKEAT/0249/1/DA)

Employers should also pay close attention to work related causes for absence which could signal the need to carry out further investigations, such as stress or anxiety absences linked to excess workloads or allegations of bullying/harassment in a team. 

2. Never forget the Return-to-Work interview ⚓︎

Return to work interviews will usually take place between the employee and their line manager only and form a vital part of understanding the reasons for the employee absence.

A pro forma return to work form should be completed at the meeting, signed by both the employee and manager, and held on the employee’s personnel file. The types of information ordinarily gathered in a return-to-work interview are:

• Dates and duration of absence.
• Whether there was compliance with absence notification requirements.
• If medical assistance was sought during absence.
• Whether the employee is taking any medication as a result of the absence.
• Clarification of whether the absence was work related.
• Whether a referral to Occupational Health is required.
• What, if any further support the employee may need on return to work.

Return-to-work interviews can be an opportunity to remind employees of the company’s attendance or short-term absence policy, and where their absence levels are with respect to the trigger points. If a trigger point is reached, a formal process should be initiated to investigate the absences and issue a warning if necessary. A return-to-work interview should not be used as a forum to deliver a formal warning regarding an employee’s attendance.

Line managers will often have the discretion to decide if further medical advice or an occupational health referral is necessary following a meeting with the employee.

3. Keep an open mind about the need for further medical advice or an occupational health referral ⚓︎

Medical advice or an occupational health opinion may sometimes be necessary in order to inform an employer’s response to on-going attendance issues.

If there is an awareness of an underlying health condition, or the employee has raised it as the reason for their high levels of absence, it may be appropriate to seek a medical opinion to ascertain the likelihood of further absences and if any reasonable adjustments or other means of improving attendance should be considered.

It is also possible that what appears to be a series of short-term unrelated absences can in fact be side effects linked to a disability, for example certain auto-immune diseases.

Obtaining a medical opinion before dismissing an employee due to persistent short-term absences will not always be necessary and it will be for the manager conducting the meeting to determine whether it would be beneficial based on consideration of the employee’s entire absence history and the information provided about the reasons for each absence.

In the case of Lyncock v Cereal Packaging ltd [1988] ICR 670, the Employment Appeals Tribunal (EAT) upheld the original decision of the Employment Tribunal (ET) that the decision to dismiss an employee who had persistent unrelated short-term absences was fair, despite medical evidence not being sought before the decision was taken. The EAT held that where there was no underling health condition to investigate there was little value in obtaining a medical opinion.

4. Sickness absence can be a conduct issue  ⚓︎

As a starting point, an investigation of sickness absence should be treated with “sympathy, tact and understanding.” (Lyncock). It should be approached on the basis that the employee has not attended work because they were unfit to do so.

However, there are occasions when suspicious patterns of absence or evidence emerges which may give rise to concerns that the employee’s absence(s) are not genuine. For example, an employer notes a pattern of absence on certain days of the week, or an employee is tagged on social media at a concert or festival on a day when they had called into work sick with the flu. An Attendance or Short-Term Absence policy should make clear that absences which are found to be fraudulent could result in disciplinary action, up to and including summary dismissal.

Likewise, employee absence may trigger a disciplinary process if the employee has failed to follow absence reporting guidelines under the Company’s Attendance or Short-Term Absence procedure. For example, failing to report sickness absence within the necessary timeframes, or to the correct person or using the wrong means of contact. The attendance policy should provide clear guidance to employees on how to report absence and flag the potential for disciplinary action if it is not followed. 

5. Implement a staged process with warnings ⚓︎

The main objective of having a well drafted and implemented Attendance or Short-Term Absence policy should be to ensure that employees are informed that their attendance levels are unacceptable and provide an opportunity for their attendance to improve.

Persistent short-term absence can be highly disruptive to business but a decision to dismiss in these circumstances should not be rushed.

Therefore, as part of a fair process, it is recommended that a staged warning system is laid out clearly in the company’s written procedure. For some employers, stages will replicate those in their disciplinary procedure – written warning, final written warning, and dismissal. In others they may refer stages, for example, stage 1, 2 and 3.

It is important to ensure that a fair procedure is followed when going through the formal stages of the process. This will include ensuring the statutory three step dispute resolution procedure is followed where dismissal or other disciplinary sanction is in prospect and providing the employee with the right to be accompanied to formal meetings.  A right of appeal should also be afforded after each warning is issued and following a decision to dismiss.

6. Dismissal should be a last resort – consider alternatives in the first instance  ⚓︎

As part of the overall consideration of whether a dismissal has been fair on capability grounds, an Employment Tribunal will consider whether alternatives to dismissal have been considered. Most commonly, in cases involving ill-heath situations, consideration of suitable alternative employment will be the most common means of avoiding a dismissal.

In dealing with short term persistent absences, this won’t always be as straightforward, particularly as employers may often be dealing with a variety of unrelated absence with no definitive factor or aspect of the employee’s role that can be linked to the absences. Therefore, the extent to which it would be reasonable for an employer to consider alternative employment will be fact specific.

If employees are suggesting changes to their role as a means of improving their attendance, an employer should consider the reason for and frequency of the absence and take a considered view of all the evidence before determining if removing a particular aspect of a role or putting an employee into a completely different role is likely to have the desired effect of reducing absence levels.

Where an employer is satisfied that that there is no prospect of an improvement in attendance, dismissal on capability grounds may be the appropriate outcome. In considering the fairness of a dismissal on ill health capability grounds, the ’Burchell test’ that is applied by Tribunals in misconduct cases is also good authority on cases involving ill health dismissals. An employer will have to show:

• That it had a genuine belief that ill-health was the reason for dismissal.
• It had reasonable grounds to sustain such a belief.
• It carried out such investigation as was reasonable in all the circumstances.

Summary ⚓︎

A carefully considered and structured Attendance or Short-Term Absence policy will provide for a fair and consistent approach to attendance management across an organisation.

Implementing absence management triggers and staged warning systems can be an effective tool for tackling persistent short-term absence but must be underpinned by a considered and sympathetic investigation of employee absence at each stage.

Dismissal for short term persistent absences does not offer a quick solution to the additional burdens it places on business and other employees, but employers can dismiss fairly if they follow the appropriate staged procedures.