If an employee is absent due to illness for a period of 4 up to and including 7 days, the employee is required to self certify their absence. The employee should obtain and complete the Self Certification Form (SC2)and submit this to their manager within 7 days of the start of their absence.
All absence days must be recorded for the purposes of Occupational and Statutory Sick Pay. This includes non-working days and weekends where the employee does not normally work on a Saturday or Sunday.
If an employee’s absence continues for 8 days or more, the employee will be required to submit a fit note from their GP or, hospital certificate and ensure that all days in the absence period are covered.
Where any absence period is not covered by fit note, this will also result in an employee having unauthorised absence which may lead to the Occupational Sick Pay being withheld and potential action under the Disciplinary Policy and Procedure.
If an employee takes unwell while abroad and submits an overseas medical certificate it is the line managers decision as to whether they are willing to accept this as an alternative to a fit note.
Keeping in Touch during Short Term Absence
When an employee reports that they are likely to return to work within 7 days of absence, further contact is not usually necessary.
In cases of short term absence of more than 7 days but where the nature of the illness is not likely to be serious or long term, you may agree the level of contact. For example, the employee contacts you by telephone on a weekly basis to provide you with an update of their health, progress and potential return to work date.
Keeping in Touch during Long Term Absence
In cases of long term absence of more than 28 days and where the employee’s medical circumstances permit, agree a frequency of contact by telephone with the employee, dependant on the circumstances of the case. In cases of long term absence you should aim to meet with the employee on a 4 weekly basis.
Serious Illness or Injury
Short Term Frequent Absence
4 episodes of absence in a rolling 12 month period (all episodes of absences that occur, both long term and short term should be counted in the rolling 12 month period including any relevant periods or patterns of absence prior to the 12 month period. For complex cases this can be up to the previous 5 years)
More than 8 days of short term sickness absence in a rolling 12 month period
NB. Episodes of absence should not be pro-rated for part-time employees when reviewing whether an employee has reached a Trigger Point.
Any relevant periods or patterns of absence prior the 12 month rolling period should also be considered where short term absence has taken place year on year.
The law relating to disability discrimination is governed by the Equality Act 2010.
The Key Provisions of the Act are that employers:
There is also a duty to take positive steps to support an employee who has a disability in order to enable them to remain in employment and perform their job successfully.
Definition of ‘Disability’
Disability is a protected characteristic under the Equality Act 2010. A person has a disability if he/she 'has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day to day activities'.
The effect must be long term therefore the condition should last for or, be reasonably expected to last for 12 months or, more. Therefore, someone who has become disabled suddenly could be protected under the Equality Act 2010. Also, someone who has a terminal illness and is likely to survive less than 12 months is also protected under the Equality Act 2010.
Effects that are not long term would therefore include loss of mobility due to a broken limb that is likely to heal within 12 months and the effects of temporary infections, from which a person would be likely to recover within 12 months.
The impairment must affect normal day-to-day activities therefore; ‘normal’ day to day activities are ones carried out by most people on a fairly regular basis such as lifting and carry a shopping bag or, books. Highly specialised activities such as playing a musical instrument would not fall within this definition. However, bear in mind that someone who is affected in such a specialised way but is also affected in normal day to day activities would be covered by this part of the definition.
Impairment will only be taken to amount to a disability in law if it has a substantial (more than trivial) and adverse affect on one or, more of the following:
Types of conditions covered under the Equality Act 2010:
Mental Illness and the Equality Act 2010:
Mental illness may range from serious long-term illness such as schizophrenia through to depression and some stress-related conditions.
Employees who have, or have had, any type of substantial and long-term mental illness or impairment, whether or not it amounts to a clinically well-recognised mental illness, are protected under the Equality Act 2010.
If an employee has had a condition or, illness in the past which at the time amounted to a disability, he/she retains permanent protection against discrimination for a reasons related to that disability.
Types of conditions not covered under the Act:
Conditions that are not covered under the Act include;
Although addiction to alcohol and drugs are excluded from the scope of protection under the Act, an individual with such an addiction may become disabled as a consequence of it. For example, someone with an alcohol addiction may develop liver disease as a consequence of persistent heavy drinking and become disabled.
Justification for disability discrimination
Treatment of an employee unfavourably for a reason which relates to disability is capable of justification. However, discriminatory treatment will never be capable of justification unless you have first made all possible reasonable adjustments to assist and support the employee. If there are no reasonable adjustment that would help or, if all reasonable adjustments have already been made, you may be able to justify discriminatory treatment. For example, you may be able to justify dismissal where it has become impossible, extremely difficult or highly impractical for the employee to do their job and there are no adjustments that would improve the situation.
Criteria for an adjustment to be reasonable
When considering whether the reasonable adjustments advised to you by Occupational Health are reasonable and practical for you to implement, it is important to consider;
Occupational Health is a specialist area of medical practice concerned with the effects of the working environment on the health of the workers, as well as the workers’ health on their ability to perform job tasks. It aims to protect and promote the health, safety and well-being of working people.
The role of Occupational Health Specialists is to work collaboratively to:
The Occupational Health Service offer a range of services to employee’s including:
In order that you are provided with independent medical advice on health related absence for an employee, you should make a management referral to Occupational Health.
Do not make a referral where there are frequent or, persistent short term absences and there is no evidence of an underlying health condition. This applies even when the employee has reached a trigger point for a formal absence meeting. Where this is the case, you may seek advice from HR Support and Advice Unit and manage the case in accordance with the Disciplinary Policy.
Attending Occupational Health appointments
Advise the employee that they will be notified of the Occupational Health appointment by letter directly from the Occupational Health Service. Inform the employee if they are unable to attend a scheduled appointment, they should notify you and Occupational Health as soon as possible. The appointment will be re-scheduled to a suitable alternative date.
If the employee fails to attend an Occupational Health appointment without prior notification, you should write to the employee informing them that failure to attend a further appointment, without due cause, may result in further action including the withdrawal of Occupational Sick Pay. Inform the employee that any refusal to co-operate will result in management decisions being made with the information that is available.
You may highlight to the employee at an appropriate absence meeting that he/she may make a confidential self-referral to Occupational Health Service for any health related matter, particularly if it is affecting their work.
As a manager, you will not receive an Occupational Health report from a self referral but the member of staff may give consent for an advice note to be sent to you. This will not be a comprehensive report.
In complex absences cases you may request a case conference with the Occupational Health Specialist who is reviewing the employee. This would be appropriate where you require further specific information or, wish to discuss the case in more depth so you have the information you require to make appropriate management decisions on the way forward. The case conference may involve yourself and an HR representative or, it may also include the employee and their trade union representative where you believe this would benefit the process. Your HR representative will provide you with guidance and advice. However, in general, there is no reason for a disabled employee to have significantly more absences than a non-disabled employee.
Access To Work Programme may provide financial help to the employer to meet part or, all of the costs of any adjustments required to the employee’s working environment and additional support that some disabled employees require to work effectively. Access to Work is run by the Employment Service. Contact your HR representative or further advice if required.
Offering Employee Support and Reasonable Adjustments
You should consider each absence case individually when considering what type of employee support, assistance and reasonable adjustment may help improve the employee’s attendance. This will involve careful consideration of the reasons, causes, length of absence and surrounding circumstances of each case using information provided to you by the employee, on medical certificates and from Occupational Health. Offering supports, assistance and reasonable adjustments should be considered, where appropriate do so. This may be at any point during the absence management process and must be confirmed in writing to the employee following the meeting.
Caution requires to be exercised when making temporary changes to the employee’s role and job tasks. If these temporary changes continue for a lengthy period of time, this could lead to contractual, job description and potentially equal pay issues for the organisation which the manager will be responsible for addressing where challenged.
You are not expected to create a special or different job for the employee concerned, nor to be a medical expert, but to take action based on information that you have available. Failure to make a reasonable adjustment for a disabled employee amounts to discrimination in its own right as this failure places the disabled employee at a disadvantage when compared to a non-disabled employee. It is important that you take the initiative to identify any support and measures that will assist the disabled employee in the workplace. This is because there is a duty on employers to know or, to ought to know that the employee is disabled.
On making a referral to the Occupational Health Service, you will be provided with a report that will inform you if the employee is likely to be covered by the Equality Act and the reasonable adjustment(s) that you should consider. However, do not feel obliged to accept or, dismiss any adjustments identified. If you believe the recommendations cannot be accommodated as it would have a negative effect on service delivery you should contact Human Resources to discuss further before you make a decision.
You should explore directly with the employee the advice on reasonable adjustments and measures that are likely to be effective in supporting them in the workplace. The employee is also likely to have a much clearer and more in-depth knowledge and understanding of what changes to working practices would be most helpful.
Examples of Reasonable Adjustments
In contrast with the previous legislation (Disability Discrimination Act 1995), the Equality Act 2010 does not set out examples of the kinds of steps that an employer may have to take in relation to a disabled worker. However, a list of possible reasonable steps which is not exhaustive would include;
The purpose of the Phased Return to Work is to enable the member of staff to work towards fulfilling all their duties and responsibilities within a defined and appropriate time period, through interim flexible working arrangements.
Implementing a Phased Return to Work
You should consider Phased Return to Work interventions using the follow process:
Timescales of a Phased Return to Work
You should obtain an Occupational Health report, in which you request whether there are any adjustments to tasks or, working hours or, shift patterns that would assist the employee’s successful return to work. Where practical, obtain this information prior to the employee returning from a long period of absence as this will allow you time to make the necessary arrangements for the employee on their return.
Occupational Health may also provide you with a recommended timeframe which these adjustments should be implemented. If this is not provided, discuss and agreed a suitable timeframe with the employee. A phased return to work programme is normally for a period of one month however this timescale can be extended depending on the circumstances.
If the phased return to work is recommended for a longer period of time or, permanently for an employee who is likely to be protected under the Equality Act, you should discuss this with your HR representative and the employee. You should determine whether the post can be adjusted to meet their needs without fundamentally altering the employee’s job description.
If making changes are likely to fundamentally alter the job, you should discuss other options, such as whether redeployment to another role would be reasonably practical. If this is the case, you should ensure you take guidance from HR.
If recommended changes would not fundamentally impact the employee’s job description and the changes are not required for a period of more than around 3 months. If it does you should discuss this with your HR representative. You should ensure that variations to contract and pay due to reduced hours or, temporary change to tasks or, duties are appropriately recorded on the Notification of Change Form. Also, you should ensure these changes are formally recorded in the appropriate follow up letter with a copy provided to the employee and a copy placed in the employee’s Personnel file.
If the employee does not have sufficient annual leave, discuss this with your HR representative to establish what other types of leave may be used in this circumstance; a combination of unpaid and annual leave could be used. Ensure that you complete a Notification of Change Form to implement any agreed changes to salary over the phased return to work period.
Any employee who is not able to use up their leave entitlement in a given year because of sick leave will be entitled to the difference between any annual leave and/or public holidays taken before sick leave began and the statutory entitlement. From 1st April 2009 the Working Time Directive statutory entitlement to annual leave is 5.6 weeks (28 days). This should be carried over and added to the entitlement in the new leave year or, where an employee is unable to return to work or is dismissed on the grounds of incapacity due to ill health, accrued annual leave will be paid in lieu. It should be noted that staff are entitled to statutory leave only and employees are not entitled to carry over (or be paid on termination) the full amount of leave provided by their NHS terms and conditions of employment.
Payment during Phased Return to Work
The employee may use annual leave they have either accrued during sickness absence or, their current annual leave allowance for part or, all of the phased return to work period. The use of annual leave will ensure payment for the period of the phased return that is not worked.
Under the Equality Act (2010) pregnant employees have special protections in the workplace against all discrimination.
Therefore, you should ensure any absence as a result of pregnancy-related illness that occur between the beginning of pregnancy until the end of maternity leave, is recorded as pregnancy-related sickness absence. It is appropriate to record this separately from other absences.
You should not count pregnancy-related sickness absence for the purposes of assessing Trigger Points in which to conduct a Formal Absence Review Meeting or, in undertaking formal processes under the Attendance Management Policy. In most cases, formal action including dismissal is likely to be unlawful. However, Return to Work Discussions should still be held with the employee and if required a formal discussion with the employee regarding any support required.
In cases where persistent frequent and/or continuous or, repeated long term absence due to pregnancy-related absence is becoming intolerable for your department to support, you must seek HR advice on the best way forward by contacting HR Support and Advice Unit.
An employee who is absent due to a pregnancy-related illness during the four weeks period prior to her expected week of childbirth can be required to start her maternity leave early, and will be entitled to maternity pay and not sick pay. Odd days of pregnancy-related illness during this period may be disregarded if the employee wishes to defer the start of her maternity leave period and a risk assessment does not indicate that carrying out work will endanger her pregnancy.
Where an employee is absent as a result of alcohol and/or, drug misuse you should:
It is appropriate to continue to manage the employee’s absence under the Attendance Management Policy whilst also using the Alcohol Policy & Substance Misuse. Your HR representative will provide advice on using both policies. Although addiction to alcohol and drugs are excluded from the scope of protection under the Equality Act 2010, an individual with such an addiction may become disabled as a consequence of it. For example, someone with an alcohol addiction may develop liver disease as a consequence of persistent heavy drinking and become disabled.
The Legal Case
Employers have a duty for staff health, safety and welfare under the Health and Safety at Work Act 1974. Employers also have a duty to carry out a risk assessment, identify potential hazards and proactively manage risks to health and safety under the Health and Safety at Work Regulations 1999. Breach of these duties can lead to enforcement action by the Health and Safety Executive for example, the imposition of an improvement notice or, in extreme cases, prosecution.
Stress-related injury due to work factors could lead to personal injury cases and other civil litigation. Where the working environment leads to a stress-related injury (for example, a recognised mental illness, such as major depression) or, where stress is linked with another legal issue (such as harassment, discrimination, constructive dismissal or, breach of contract), an employer could find itself pursued for damages in the civil courts.
Report the incident
If it is identified that the stress-related illness is caused by work, for example, as a result of alleged bullying and harassment or, trauma or, workload, you should complete a Datix record. A Formal Absence Review meeting should be convened to explore the reasons for the stressors further. The meeting will also provide the opportunity for discussion with regard to potential options for addressing or resolving the stressors and whether a management referral to the Occupational Health department would be beneficial.
If the employee’s absence is the result of a work-related injury, illness or other health condition they may be eligible to claim Injury Allowance in line with the Board’s Injury Allowance Procedure. This is a payment made to eligible staff that tops up sick pay, or earnings when on a phased return to work, to 85 per cent of pay.
The injury, illness or other health condition must be shown to have been sustained or contracted in the discharge of their duties and be wholly or mainly attributable to their employment. Entitlement is determined by a local Injury Allowance Panel made up of Senior HR, Management, OHS, H&S and staff side representatives.
Injury Allowance is payable for a period of up to 12 months per episode, subject to NHS Greater Glasgow and Clyde’s Attendance Management Policy and Procedures.
Employees are required to inform their line manager at the earliest opportunity that their absence is work-related. They are required to complete an Injury Allowance Application form and submit this for verification to their line manager along with any supporting documentation, including a copy of the Datix report, and any OHS advice or support that they have been receiving as a result of their injury or illness.
You should ensure that the employee is aware of the process to be followed and that where an application is being considered that this is submitted timeously (in advance of the employee reaching a half pay situation) and that all additional supporting documentation is enclosed to enable the Injury Allowance Panel to make a decision.
Where the employee subsequently has to change jobs permanently to a position on lower pay, or has to reduce their hours/change their work pattern due to the work related injury, illness or other health condition, they will be eligible for the same pay protection as that applicable to organisational change.