So in your discussion, Seamus, you mentioned trigger points in your policy. What do you mean by that? What is a trigger point, why are important and for what type of event should they be used?

Seamus: I think there was some confusion around that, but the triggers that I was focussing on during my seminar were really in relation to often you'll see within policies and procedures that deal with long-term absence, or absence in general, that there are certain time points that will trigger action by the employer in relation to the employee that has been on absence.

I think it's a good idea that certainly the expectation would be that you would have a record of absences for employees. It's important that that is kept and retained.

And sometimes within small businesses there isn't a good record kept, and sometimes there is records kept, but they're not reviewed. So it's important to keep on top of that.

I mean, in general, if you're operating a small to medium-sized business you'll be aware of who your repeat offenders are, who are the ones to watch in relation to absence.

But there will also be those other sensitive absences where people maybe have had different things happening during the year. And sometimes we do just have bad years where we maybe have a bereavement. We maybe have children or a partner that are sick. And there appears to the employer that there's been a lot of time off and the suspicions start to arise then at that point.

But the triggers that I was talking about were really in relation to . . . Certainly, within public sector, you will definitely see within public sector absence management procedures whereby there are certain triggers that will encounter subsequent action by the employer.

And whether that is after a period of four weeks or referral to Occupational Health, whether it is a period of eight weeks where there's a referral to HR and there is a welfare meeting that is sought. Sometimes that will happen quicker than eight weeks, and it depends on the pattern of absence also.

Whether absence is regular, but maybe not long-term. Maybe there's that pattern of a week here and another week there, a few days missed, and things like that.

So those are the trigger points that we're looking for. But what we want to make sure is that the trigger points are set out clearly within the absence policy and procedure.

And really, the key aspect there is that there's a consistent approach to employees so that employees don't feel that they're being treated differently or less favourably than somebody else.

The triggers as well will move through that process, and you'll see this again . . . Mainly I've come across this in public-sector cases that I deal with, that there will be a trigger point for a review meeting.

There might be an informal warning provided at that point, that there's an expectation for the employee to report to work. If there is continued absence, or there's a repeat of the absence within a certain period of time, there may be possible disciplinary action against the employee in relation to their absence.

You do need to be careful just in and around what reasonable adjustments you might have to consider. I suppose the real issue that can arise is that where you have a period of long-term illness, the flag is up in relation to potentially the employee having a disability. And if there is a disability, what reasonable adjustments might you need to apply? Not just to how you deal with the employee, but also to your policy and procedure on absence.

If somebody is suffering from a disability and you're wanting to ensure that they're not treated less favourably, you might need to reconsider some of those natural trigger points that are set in the policy and procedure.

So, if you had unfortunate circumstances where you had an employee who had a very bad car accident, the realistic aspect of it is that you're probably going to be aware that the employee is not going to return to work in a few weeks.

Or alternatively, if you have an employee that has a cancer diagnosis, that's an immediate red flag for a disability, and those amendments that you'll need to make to how you deal and how you approach with that employee.

So those were the triggers that I was speaking about, and what the intention was behind that. It does cover triggers for referral for Occupational Health. Generally, if you get an Occupational Health report back and it is for somebody that's on long-term sick leave, it will likely say that they will review the employee again in four to eight weeks or maybe at a three-month period.

So it's just keeping on top of those triggers that are there and it is working through that process to mirror up the steps that you take in accordance with the medical advice that you've received.

What I'd mentioned during the seminar as well was that the Equality Commission had specifically said that when you're dealing with long-term absence, there are a few red flags when it comes to potential discrimination.

And what they say is there are five in total. Be careful when you're dealing with long-term absence that arises as a result of disability-related absences. Employees affected by cancer specifically, which I'd had mentioned.

Pregnancy-related absence and maternity leave. There's obviously special statutory protection for these types of employees.

Women affected by menopause. I did see there on Legal-Island's weekly update there that there has been a surge in cases for disability complaints related to menopause. So that's a really interesting one, and I think as of recent times, it's one that employers will need to just tread carefully with.

And then absence in relation to gender reassignment is the other one that the Equality Commission flagged up there as well.

So I think that you can't just take your policy and procedure and say, "It's black and white". Although we want a consistent approach, we do need to consider it in light of the circumstances of the employee's absence itself.

Christine: Yeah, I think that has really hit the nail on the head of why people are nervous about this type of thing. Yes, you have a policy and lawyers like to say, "Follow your policy. Have a policy". But then we always add the "but" at the end. "But in certain circumstances". So you do have to be quite dynamic in your approach. I think it's really just about concentrating on people as individuals, not a box-ticking exercise.

"This is a person. How can I deal with them empathetically whilst also serving the needs of the business?" And that's the real balance you need to strike, which is so tricky.

Occupational Health reports

You did mention Occupational Health reports. When I was advising in private practice, depending on the size of the business, I would have said, "Get an Occupational Health report". In other circumstances, where you maybe had somebody with a cancer diagnosis, their specialists would often write reports for you as well. It's another option. But do you think a report like that on its own is enough?

And also, sometimes quite complex medical issues come up, and we don't have medical degrees. Do we understand what's going on? And what should we do if we don't?

Seamus: That's it, as well. And particularly if you're coming down the line to consideration for dismissal, I think that's an important point, Christine, that you just made. A tribunal panel are not medically qualified either, and they will be relying on the medical evidence that you have obtained, essentially.

My starting point tends to be that it depends on the circumstances of the absence. And the majority of times, I would be of the view that an Occupational Health report is beneficial because it's independent.

I think we've all had those circumstances where we've maybe asked for the GP report, and you get the report and it very much appears that the GP has either brought the employee in for a consultation whenever we could do that, or they're spoken to them on the phone, and you get a rehash of that discussion.

I always feel with Occupational Health reports there's a bit more independence. There's a bit more probing that goes on, and they tend to answer the questions that you've asked.

That sort of is one of my main takeaway points when it comes to obtaining medical evidence. I really don't like whenever you get the pro forma from the Occupational Health Service, and it's tick-the-box exercise, and then they give you a wee tiny box at the bottom to add some questions and comments. I really like to particularise the circumstances and ask specific questions.

And if it's a long-term absence, I will be asking, "When can the employee return and is that in the foreseeable future?" And that word "foreseeable future" is important for me whenever I'm dealing with these sorts of cases for clients. We'll get to that a little bit later on.

But you're exactly right. I dealt with a case not so long ago where my client was the employee and had a stroke followed by a number of smaller strokes that had taken place.

And it was apparent whenever the employer obtained the Occupational Health report that the condition was so complex that the Occupational Health report really wasn't sufficient.

And to be fair, the Occupational Health doctor recommended that a specific report be obtained from the employee's consultant. Now, that took a period of time in order to organise. Not just because we were going through the COVID aspect, but it's just more difficult to get a report from a consultant because they're very busy.

There had to be a link-up in relation to obviously obtaining consent from the employee, my client, to be able to get that consent for him to be saying that he was happy for a report to be provided.

We did get a consultant report, and then we also got a secondary consultant report, because the impact of the stroke upon my client meant that he was also attending a specialised service within the trust.

There was also a separate doctor that was helping him deal with different matters in relation to his actual physicality rather than just what was going on inside the body.

So there were a number of reports that we had to review in relation with Occupational Health. Certainly, whenever the Occupational Health had originally been instructed, the Occupational Health doctor won't cite the GP's notes and records. And again, my client had to be contacted for consent in relation to that.

So specifically, and I had mentioned it during the seminar, there is legislation that applies. It's The Access to Personal Files and Medical Records (Northern Ireland) Order 1991.

We're also focussing very much on GDPR, and a doctor's surgery will simply not just send the medical notes and records out to the employer. They will want a form of consent signed by the employee to say that the employee consents to the notes and records being provided.

And they'll probably use the word "relevant" GP notes and records at that point. They will not simply disclose the full employee's GP notes and records.

So there is an issue of consent certainly to consider, and the employee should be asked to consent to the provision of medical information.

If the employee doesn't consent, the employer is left in a position of dealing with the assessment that they do in relation to the employee on the basis of the evidence that they have available.

And also, even to the point I've had circumstances where the employee will attend the Occupational Health report. They will be sent the report by the occupational health doctor first for their comment to make sure that it is accurate.

It's not an opportunity for the employee to get into a war of words or into a complaint with the doctor about what the doctor thinks. That's the doctor's professionalism and their judgement. But they do get an opportunity usually to see the report. And they can at that point say, "No, I don't want you to provide the report to my employer". I've had those circumstances in the past.

So definitely, Occupational Health is probably a starting point for me. In circumstances where it's appropriate, I think, yes, a GP report can assist. You might need to go back to get the GP notes and records for the Occupational Health doctor. And then, in addition to that, you might need to get a specialist report maybe from a consultant.

We also have occupational therapists as well that will attend places of work, or maybe now at the home office, to assess and make sure that it's an appropriate environment, and that there are all the reasonable adjustments that would be required for the employee to continue doing their work.

So definitely, there's a position where you're not just focussing on occupational health. You're moving outside of that as well.

Christine: Yeah, I suppose it's, again, having a dynamic approach and treating people each as individuals. I suppose you just have to kind of get your tribunal goggles on slightly. How will a tribunal view my decision in light of the information that's in front of me? So you always just have to go back, "Can I justify this? Does it seem fair? Would I be prepared to say this in a tribunal?" So just get those goggles on and look at the information that way.