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Absence

A member of staff with a record for poor time-keeping has recently been absent with “flu like” symptoms. However, it has been brought to my attention that his Facebook profile described him as hung over on the day he rang in sick. The employee is still in his probation period and has been with me for only three months. What action can I take against him?

Someone who has been employed for less than a year cannot normally make a tribunal claim for unfair dismissal but he or she can potentially  make a claim for breach of contract.  It is common for employers to write into their terms that short serving employees – those with less than a year's service – will not be entitled to the full disciplinary procedure but are entitled to a hearing and an appeal. 
Issue a letter that requires him to attend a disciplinary hearing.  The letter should set out his right to be accompanied, to state his case and the right to appeal. Set out the details of your concerns. 

You might wish to download a copy of his Facebook entry and attach that to the letter, along with full details of absences and the times when he was late.  Make clear in the letter that you regard these as serious matters and that if he doesn't have a satisfactory explanation it would be your intention to terminate his employment.  During the hearing make sure you have a competent note taker.  Explain your concerns to the employee and listen to what he has to say.  Once he has provided his explanations, challenge any areas of concern. From his attitude, try to determine whether he is likely to repeat this misbehaviour.  If his explanations are unsatisfactory and you feel that his poor behaviour will continue, then you may well decide to dismiss him. 

Confirm the dismissal in writing and repeat his right to appeal. If an appeal is made, ensure that it is conducted properly by somebody not involved in the original disciplinary action.


One of my employees is about to undergo IVF treatment and will need time off work. Will this qualify as sick leave or should she have to use her annual leave as this is an elective procedure?

One in six couples are currently seeking fertility treatment so there is a strong chance most employers will face a similar scenario, and it is not just limited to fertility treatments as other elective procedures include cosmetic surgery and transgender surgery.

Employees are entitled to statutory sick pay (SSP) when they are unfit to attend work. The reason why they are unfit to attend work is of little importance. Therefore providing an employee complies with your sickness absence notification procedure then SSP will be payable.

An employee who is undergoing fertility treatment, or any other elective procedure, will not normally be entitled to SSP unless they are suffering any effects of the treatment, such as depression or stress, that render them unfit for work. However, it is important to check the terms under which any contractual sick pay is payable as it will depend upon the terms of it. Where discretion may be exercised it must always be applied consistently so to avoid any discrimination issues arising. If, however, an employee produces a doctor’s certificate signing them off work then SSP, or any contractual sick pay they are entitled to, will be payable.

Another thing employers must bear in mind is confidentiality. Colleagues may enquire as to the whereabouts of an absent employee, but it is important to maintain the confidence of that employee and to not disclose anything without their consent. Where an employee is undergoing an elective procedure, particularly one that may change their appearance, such as transgender surgery, it may be advisable to speak to the employee about whether they would like anything to be said to their colleague’s to ensure they are sensitive towards them rather than inquisitive. It would also be important if any such discussions were to take place with staff that they are reminded of any harassment policy that you have in place and to remind them of what conduct is deemed to be unacceptable.


An employee has just returned to work after being absent for 2 weeks due to a recurring injury and is awaiting referral to hospital, normal duties involve a lot of manual lifting and walking. We are happy to offer lighter duties for a period of time, should we being doing anything else at present?

It would courteous as an employer to put the employee on light duties for a specified period of time and review progress throughout i.e. weekly catch-up with line manager to ascertain employee’s capability.  If employee is struggling even with lighter duties it may be an option to offer a reduced working week, for example 4 days per week and the 5th day being regarded as a days’ absence.  This would ensure that employee is still at work for part of the week and is still receiving full pay for the week.

If there is a history of absence and your policy is to send to occupational health after certain periods of absence and this target has been reached then follow your policy and procedure.  The report from Occupational Health Advisor may provide you an indication of time involved until fully fit.


Some of our staff were unable to get to work recently, due to snow affecting transport arrangements. Do we still have to pay them?

Unless you have contractually promised to provide transport for employees to and from their place of work, the onus is on the employees to get to work, regardless of the severity of the weather conditions.The responsibility for employees getting to work does not lie with the employer.

If employees fail to turn up for work in these circumstances, the employer is under no obligation to pay them. If an employee's normal mode of transport cannot be used because of disruption due to severe weather conditions, the employer should first encourage the employee to explore alternative means of safe transport. You may wish to consider whether the employee could usefully work from home until the weather situation has improved. If this is not a viable option, then the alternatives available are to advise employees that any time off work in these circumstances will be unpaid, or paid on a discretionary basis, but only in exceptional cases. Another option is that employees can request to take the time off as paid annual leave.

The key points are:


An employee competed a in local marathon. She ran for charity in fancy dress and tripped on part of her costume, resulting in a sprained ankle. As a result, she failed to turn up for work the following day. What is the legal position regarding sick leave and sick pay in these circumstances?

With an increasing number of people participating in charitable fun runs and other types of voluntary work each year, employers need to strike a balance between encouraging staff to participate in these activities, while at the same time ensuring that attendance, productivity and morale are not adversely affected. Best practice is for employers to adopt a workplace policy covering employees' participation in sporting and charitable activities.

For example, you might want to consider encouraging those members of staff who participate in marathons or other sporting events to take the day off after the event as part of their annual holiday entitlement. Where the event is for charity, you might consider allowing members of staff who are participating to take the following day off as unpaid leave or as an additional paid holiday. Some employers offer all staff a certain number of paid days off each year to enable them to participate in pro-bono or charitable activities. Whatever the policy, it should be applied consistently among all staff.

Sometimes entitlements to sick leave and pay are made subject to an employee complying with certain sickness notification procedures. An employee will be required to notify their manager of their absence and its likely duration as early as possible. If they are off work for several days, they will probably be required to produce a doctor's certificate.

If the employee fails to follow the employer's sickness absence procedure, you may take disciplinary action


Am I required to give an employee time off to deal with the after effects of a burglary? An employee was recently burgled and is claiming that he has a right to time off to arrange for a locksmith and so on.

Employers will usually grant time off, paid or unpaid, for sudden personal reasons, such as a bereavement or domestic emergencies like fire, flooding or burglary. But there is no statutory right to time off except to care for dependents in certain circumstances, to make funeral arrangements for dependents and attend their funerals.  You  may decide that paying employees when they  need to take time off will improve staff morale and loyalty. Also the employee can request to take some of his annual leave.  Ultimately, you need to strike a balance between the needs of the business and the needs of the employee.  It is a good idea to have a written policy so you can deal consistently and fairly with requests for discretionary leave.  We can provide you with support to develop these policies to suit your business needs. 


I have an employee who is currently off long-term sick due to stress. I am not sure if this is caused partly by work or partly by other factors. What evidence do I need to prove stress and in future what can I do if an employee complains of stress. What is my duty of care as an employer?

Stress is quite a difficult concept to define. The Health and Safety Executive defines it as "the adverse reaction people have to excessive pressures or types of demand placed on them". This definition recognises the fact that stress is a reaction, and not a disease in itself. It can manifest itself in a number of ways and an employee would have to produce medical evidence to prove any injury they claim was caused by stress. First and foremost, as the employer you need to treat the matter seriously. You should speak to the employee to try and identify the causes of the stress - these may or may not be work-related. If the employee says that the stress is work-related, then you should discuss the exact causes with the employee. The steps it can take to deal with the issue will depend to a large extent on the contributing factors. It is important that you do not simply ignore the employee's concerns. If you have been put on notice that the employee is suffering from stress, whether work-related or not, it will clearly be easier for him/her to show that the risk of harm was foreseeable, a key factor in any successful claim.

Employers are under a duty to provide a safe system of work, and this includes taking steps to ensure that staff do not suffer stress-related illnesses as a result of their work. Employers that breach this duty may face negligence claims, although such claims are far from straightforward and employees have to overcome some fairly major hurdles before they can succeed. An employee has to show that: their employer owed them a duty of care their employer breached that duty they have suffered an injury the injury was caused by their employer's breach of duty and that the injury was reasonably foreseeable. Most stress cases turn on whether or not the employee's injury was reasonably foreseeable.


An employee who has been with me for five years is on long -term sick leave. Her problem began with headaches and migraines but later she said it was stress. She has been absent for six weeks and I wish to terminate her contract. How should I do this?

You should not contemplate dismissing anyone who has more than a year's service without following the correct procedure.  The length of the process will be determined by the circumstances.  You need to think carefully about your reasons for wanting to dismiss this employee.  She has been absent for only six weeks so this cannot be treated as long term absence.  You state that it began as headaches and migraines but it is now stress or due to problems outside work.

It would be considered to be unreasonable to dismiss someone during contractual sick pay period because a tribunal would consider that when this contractual amount was set, it was done so on the basis that the company could "cope" with paying for an absence of that length.  You would have difficulty in justifying and decision NOT to pay the contractual amount set.  then consider how long the absence is likely to last.  you seem to be anticipating a long term absence but you haven't given any reason.You are considering dismissing someone who has worked for you for five years on grounds of medical capability.  To make a reasoned decision you need to consider all the details.

Seek your employee's consent to obtain medical information on the causes of absence, how long it is likely to last and if this employee could return if you can make some adjustments.  Call your employee to a meeting to discuss the situation and the medical evidence and consider your options.  You should obnly consider dismissal if you have no other choice. Also, bear in mind that long-term sickness can be considered a disability so you can run the risk of a dismissal being discriminatory.

 


If an employee has flu symptoms, or has been in contact with someone with swine flu,can he or she be instructed not to come to work?

Employers are under a duty to ensure the health and safety of all their employees and to provide a safe place and system of work. These duties exist under both the
common law and statute. Employees are also under a duty to take reasonable care to ensure that they do not endanger themselves or anyone who may be affected by  their acts or omissions at work.

In light of the above duties, and the serious implications for its business if swine flu is contracted and spread in the workplace, an employer would be justified in instructing an employee with swine flu symptoms not to attend work, and to seek a diagnosis from a medical professional and not return to work until the symptoms have cleared.

In relation to an employee who does not have swine flu, but who has been in contact with an infected person, Cabinet Office advice is that it is not necessary on risk
grounds to ask such people not to attend work. However, it is open to the employer to agree with the employee that he or she will work from home or return to work only
if he or she does not develop symptoms during the incubation period. The incubation period (the time between contact with the virus and the onset of symptoms) is between one and four days


We have an employee who is signed off work with stress. We have tried to contact the employee to establish if the stress is work related and to offer support. We would like to invite the employee to a meeting to discuss this absence; what should we be discussing and not discussing at this stage?

We would recommend that in the first instance you contact the employee by telephone as an informal approach to arrange a meeting. You can hold this meeting away from the office or arrange a home visit. Discuss how the employee is feeling and establish if it is work related stress and if it is what in particular is attributing to the individual’s stress. If it is not work-related, try to establish if work is an attributing factor. Ask what the employee’s doctor says about a possible return to work in terms of reasonable adjustments.

The questions you could ask include, for example:

If you have no success in arranging a meeting with the employee or if they do not give you any specific information about a return to work date, a more formal meeting may be required, but asking this time for permission to approach the individual’s doctor (via a medical consent form) for a medical opinion on their health and potential return to work.

If the doctor’s diagnosis is favourable, discuss with the employee returning to work, how and when, and any limitations of returning to a full workload straightaway and any reasonable adjustments that can be made. Consider what help they may need to return, for example a change in hours or a change in responsibilities for a fixed period.

If the doctor’s diagnosis is unfavourable, and it is unlikely that the employee will be fit to return to work in any capacity for the foreseeable future, HCS recommend that you gain an objective opinion from an Occupational Health Therapist which HCS can assist with.


One of our employees recently slipped and fell at work. She carried on working for the rest of the day and didn’t appear to be in pain, but was then off work sick for two weeks, claiming she had broken her foot. She came back to work, but then took another two weeks of sick leave. I don’t want to get sued for unfair dismissal, but can I fairly dismiss her with all these absences?

Any dismissal based on those absences alone has a good chance of resulting in a claim for unfair dismissal, assuming that the employee has the requisite 12 months’ service to bring such a claim in the employment tribunal.

You should first consider whether the employee complied with your sickness absence reporting procedures. As she was absent for more than seven days, you should have received a fit note from her confirming the reason for her absence. If she is in breach of your sickness absence reporting procedures, it may be possible to start disciplinary action against her on that basis. But it is highly unlikely that a dismissal based solely on procedural failings would be a proportionate response.

However, if the employee has a history of persistent short-term absences, you may be able to deal with her sickness absence, as part of this wider issue, as a disciplinary matter. If so, ensure you comply with ACAS Code of Practice, and act reasonably throughout. Although it is unlikely to be the case with a broken foot, as with all employment issues involving employee sickness, you should be aware of the possibility of an underlying medical condition that could amount to a disability, and if this seems to be the case here, obtain advice from an employment specialist before taking any disciplinary action. Given that the employee’s accident occurred at work, be aware that she may have a personal injury claim against the company. Ensure that details of the accident have been recorded in the accident book and that steps have been taken from a health and safety perspective to reduce the chances of a similar accident happening again.

More generally, to help deal with and manage sickness absence, you should consider holding return-to-work interviews with all employees who return from a period of sickness absence to ascertain the reason behind the absence, determine whether any further absence may result and how you can assist, and also to alert the company to any potential disabilities.