Our third instalment in the 'Breaking Down the Handbook' series looks at absence management policies, in particular considering why employers should have them, what they should contain and whether they should have contractual status.
Why have them?
An employee's frequent and persistent absence from work can have a damaging effect on efficiency, morale and productivity, and will frequently place additional burdens upon the employee's colleagues. The impact that ill health has on both the employee who is unwell and other individuals they work with should not be overlooked. Employers have a legitimate interest and a duty of care to actively manage their employees to reduce absence levels and ensure an acceptable level of attendance to benefit the entire workforce.
When attendance issues cannot (for whatever reason) be resolved informally, an absence management policy will provide a suitable formal framework for managing the improvement of an employee's attendance. The existence of a formal policy will ensure consistency and should give managers the confidence to tackle these issues in a proactive way.
The aims of an absence management policy therefore are to:
- ensure that staff absence is kept to a minimum through effective management;
- identify any additional risk areas (such as the need for reasonable adjustments);
- provide support to employees with health problems;
- ensure that all employees are treated fairly and consistently;
- assist and encourage employees in returning to work; and
- ensure compliance with applicable legal obligations.
Of course, from time to time employees suffer more serious illness or injury, and will justifiably need to have longer periods away from work. It ought not to be an employer's intention to penalise any employee in such circumstances. Instead, an employer should monitor attendance levels and seek to understand the reason for any absence in order to provide the necessary level of support to employees and ensure the health and safety of all staff. This is ultimately why an absence management policy should be put in place.
What they should contain?
As discussed above, the aim of an absence management policy should be to ensure the health and safety of all staff. With this in mind, a detailed policy ought to be sufficiently flexible to contain provisions for all manner of circumstances: from long-term absence (a continuous period of absence due to illness or injury) to short-term, frequent absence (a handful of absences (of any length) or an aggregated total over a given period).
In terms of content, an employer is essentially free to include rules or provisions that suit its needs, providing that any statutory provisions are not impeded (for example, those relating to statutory sick pay and the requirement to make reasonable adjustments where an employee has a disability within the legal definition). As a rule of best practice, an absence management policy should include:
- when and how employees provide notification of any absence;
- what levels of short term absence will attract further scrutiny;
- guidance that differentiates short term from long term absence;
- guidance on return to work procedures;
- provisions for the use of occupational health and/or GP reports;
- rules regarding pay during absence (and potentially the ability to withhold contractual sick pay where reporting procedures are not followed); and/or
- processes to enable effective return to work.
Should they be contractual?
Similar to the disciplinary and grievance procedure, it is generally better for employers to make absence management policies non-contractual as it allows for the policies and procedures to be changed with greater ease, and/or to depart from them where appropriate in the circumstances.
What process should be followed?
Disciplinary or capability? The absence management policy should identify the process that is to be applied when a problem is identified. The answer will depend on whether the employer considers that the absence is genuine. An employee who is suspected of falsifying their absence would properly attract the attention of a disciplinary procedure but an employee with an ongoing condition should be treated more sympathetically.
It is often advantageous for employer's to be able to distinguish between a warning that is given as part of an absence management process and one that is issued following a conduct issue. To this end it is advisable to have separate processes for each, even if the basic steps are very similar.
For an employee, to be taken through a disciplinary process when it is accepted that they are suffering from a genuine condition is a very emotional and often distressing situation, particularly if the absence is as a result of stress or anxiety.
How should absence be monitored?
Some employers take the view that absence procedures will be triggered once a certain number of absences have occurred in a set period. Others will swear by the use of the Bradford factor (which records the frequency and length of absences) as a tool to assess the impact that absence has on the business. Employers should be clear that whatever method is adopted (and they all have their advantages and disadvantages), the important thing to recognise is that they are an indicator only and should not form the basis of their decisions. Employers should train their managers to assess the situation and apply the absence management process in the correct circumstances and in a proportionate and fair manner.
The disability question.
Frequent short term absence is typically dealt with through the use of targets and, where those targets are not achieved, warnings tend to be issued. Employers have the tricky issue of deciding whether targets and warnings are the most appropriate way forward as an employee who is suffering from a chronic condition may not be able to satisfy the targets in any event. In such circumstances the employee is probably suffering from a condition that is capable of being a disability in the legal sense with the result that the duty to make reasonable adjustments is triggered. Those adjustments could include being more flexible in terms of the targets that are set under the absence management process. In extreme cases the employer may have to decide whether the employee is capable of completing their duties at all. The policy adopted must be sufficiently flexible to accommodate all such eventualities.
Employers cannot be liable for disability discrimination where they have no knowledge of a condition. However, an employer is obliged to investigate the cause of absence, particularly where a previously healthy employee shows erratic behaviour or has a number of absences in a short period of time. An unusual pattern should put the employer on notice of a potential problem and, if it not investigated, can result in the employer being deemed to have constructive knowledge of the health issue due to their failure to investigate.
Where does the GDPR fit in?
Dealing with an absence management process is almost certainly going to involve processing data that relates to the employee's health. Health information form special categories of data but an employer is entitled to lawfully process such data where the purpose is to establish the employee's capability to work. For this reason it is also sensible to be able to differentiate the process that is being followed so that no confusion arises.
That completes the absence management policy section of our handbook series. Look out for our next article in this series focusing on whistleblowing policies.