Stephen Jenkins of Geldards at the Wales Charity Law and Governance Conference 2014.

1. Managing sickness absence
Identifying & avoiding the pitfalls
Stephen Jenkins
Partner, Geldards LLP

2. Introduction
• Short-term absence
• Long-term absence
• Disability-related absence

3. Short-term sickness absence
• When does absence become an issue?
• Managing short-term absence
• When disciplinary action is appropriate
• Problematic areas

4. When does absence become an issue?
• Managing workflow/arranging cover
• Cost to the organisation
• Lost or delayed output
• Low morale
• Reduced standard of service
• Poor performance?

5. Managing short- term sickness
absence
• Communication and implementation of
policies and procedures
• Awareness of what is expected
• Monitoring and using sickness absence data

6. Reporting sickness absence
• Line manager / HR should be first port of call
• Named trustee contact?
• Appropriate training
• Obtain details of absence
• Ensure ‘joined up’ and consistent approach
• Remind employees of key points within
policies

7. Other issues during sickness absence
• Evidence of absence?
• Appropriate contact
• Paper trail
• Conduct during sick leave

8. Return to work interviews
• Immediate supervisor or manager
• Consistency!
• Use interview to:
− Identify cause of absence and whether steps can
minimise absence
− Highlight if absence is an issue
− Assess whether reasons offered are consistent
with other reliable evidence
− Keep written record

9. Is disciplinary action appropriate?
• Monitor data:
− What absence patterns are evident?
− What proportion of absence is uncertified?
− What are the reasons for absence?
− What information has been gathered?

10. Is disciplinary action appropriate?
• Reasonable grounds to believe employee not
genuinely ill?
• Unacceptable disruption to the organisation
• Trigger points

11. Disciplinary action – Formal meeting
• Use meeting to identify the following:
− Effect of pattern of absence
− Likelihood of continuation
− Whether changes would assist absences
− Whether absences are disability-related
− Formal warning appropriate?

12. Disciplinary action – issues to consider
• Follow fair procedure
• Timescale and suggestions for improvement
• Consistency
• Medical opinion required?
• Capability

13. Problematic Areas
• Pregnancy-related illness
• Sick pay
• Holidays and sickness absence

14. Long-term Sickness Absence
• Issues arising from long term sickness absence
• Practical considerations including sick pay
• How to manage long term absence
• Unfair dismissal risks

15. What should you do when absence
becomes a problem?
• Impact on the organisation
• Formal process required?
• What do your policies and procedures say?
• Trigger points
• Meeting with the employee is crucial

16. Practical considerations
• What main issues will an employer have to
consider when faced with long-term absence?
− Level of contact with employee
− Entitlement to sick pay
− Reason for absence – is it genuine?
− Causation – is the absence work related?
− Holidays

17. Dealing with ill health incapability
• Ensure that you follow a fair procedure
• Likely to be time consuming and onerous
• Risk of claims for:
− Unfair dismissal
− Discrimination (particularly disability
discrimination)
− Breach of contract

18. Managing long term absence - Process
• Avoid letting the situation drift
• First formal meeting
• What issues should you explore at this stage?
• Importance of a paper trail

19. Process continued…..
• Investigate the cause and likely length of
absence
• Importance of medical evidence
• Discuss medical evidence with the individual
• Use of warnings
• Disability issues to consider?

20. Dismissal
• When should dismissal be considered?
• Information to be given to the employee
• Meeting
• Failure to attend – options?
• Appeal

21. Dismissal continued…
• Last resort
• Up to date medical report – clear prognosis
• Check previous warnings are valid
• Follow a fair procedure
• What notice pay should the employee
receive?

22. Permanent Health Insurance?
• Provides benefits in the event that the
employee is unable to work by reason of
illness or injury
• Dismissing an employee before establishing
whether they are entitled to PHI could result
in a Breach of Contract claim
• Consider the employee’s contract and the
rules of the PHI policy

23. Ill health early retirement?
• Medical report confirming that employee is
medically incapable of performing their
current occupation
• Check the scheme rules
• If scheme rules permit ill health retirement
then consider this option for the employee
before dismissal

24. Recap of key points to avoid unfair
dismissal liability
• Investigation is key
• Medical evidence
• Consultation with the employee
• Alternative employment options
• Disability issues or not

25. Disability related absence

26. Disability and Sickness Absence
• Employers need to be aware of the law on
disability discrimination as there is no qualifying
period for discrimination claims and no upper
limit on compensation.
• Potentially large sums of money can be awarded
by the ET for injury to feelings and loss of
earnings which may run over a prolonged period
• However, the median award for disability
discrimination in 2011/2012 was £8,928.

27. Disability and Sickness Absence
• Equality Act 2010 (EqA 2010) –
− duty to make reasonable adjustments where a
disabled person is at a disadvantage
• NB - unfair dismissal claims and/or breach of
contract claims too

28. When Absence becomes a Problem
• Key issue – Disability and Sickness Absence
• Obtaining medical evidence
a) independent specialist doctor
b) occupational health expert
• Information from an independent specialist who has
not previously been responsible for the employee
may be seen as more reliable than a report from
employee’s GP

29. When Absence becomes a Problem
(Cont.)
•Must consult with employee regarding any
reasonable adjustments which could be made
•Duty on employer to consider making the
reasonable adjustment
•Employee should be asked for his/her
suggestions

30. Meeting and consulting with employer
regarding medical evidence (cont.)
• Not enough for employer to simply rely on
employee’s suggestions
• No onus on employee to make suggestions
• Medical evidence – safest option – on what
reasonable adjustments could be made and
whether they would enable employee to
return at some stage.

31. Meeting and consulting with employer
regarding medical evidence (cont.)
• Employer should ascertain whether there is
another job in the business which would be
more suitable
• Any redeployment discussions should be
approached sensitively as employee could be
offended if seen as a criticism of their abilities
or a demotion

32. Meeting and consulting with employer
regarding medical evidence (cont.)
• Reasonable adjustments may also need to be
made to the procedure itself –
− Meeting at employee’s home or other convenient
location
− More time to read material and prepare for the
meeting

33. Meeting and consulting with employer
regarding medical evidence (cont.)
• Employer should be reasonably flexible
• No need to hold off from taking decisions
indefinitely

34. When is a sick employee disabled?
• Physical or mental impairment and the
impairment has a substantial and long term
adverse effect on their ability to carry out
normal day to day activities - Section 6(1) EqA
2010

35. When is a sick employee disabled?
• In some cases obvious where the employee is
disabled but in other cases it may be
necessary and prudent to obtain a medical
report in order to establish he/she is disabled
and whether you need to consider making
reasonable adjustments
• Best advice – in borderline cases simply
proceed on basis of an assumption employee
is disabled

36. Discrimination
If an employee is disabled within the meaning of
the EqA 2010, the employer must be careful to
avoid:
Direct Discrimination
Treating them less favourably because of disability than others
whose material circumstances including abilities are not
materially different
Discrimination arising
from Disability
Treating them unfavourably because of something arising out of
their disability, unless that treatment is a proportionate means
of achieving a legitimate aim
Indirect Discrimination
Applying a provision, criterion or practice (PCP) that puts the
employee (and other persons with that disability) at a particular
disadvantage, unless that PCP is a proportionate means of
achieving a legitimate aim

37. Discrimination
Reasonable
Adjustments
Failing to comply with a duty to make reasonable adjustments
where that would help those at a substantial disadvantage
Victimisation
Dismissing or subjecting an employee to detriment because they
have done a ‘protected act’ such as complaining about
discrimination or supporting another employee in their
complaint
Harassment
Unwanted conduct related to disability which has the purpose
or effect of violating the employee’s dignity or creating an
intimidating, hostile, degrading, humiliating or offensive
environment for them

38. Duty to make reasonable adjustments
• Where any PCP applied by or on behalf of an
employer, or any physical feature of the
employer’s premises, or the lack of an
‘auxiliary aid’, places the disabled employee at
a substantial disadvantage in comparison with
persons who are not disabled, the employer
must take such steps as are reasonable, in all
the circumstances of the case, to avoid that
disadvantage or provide the auxiliary aid.

39. What adjustments will be reasonable?
• In theory – limitless!
• The EHRC Employment Statutory Code of
Practice contains a non-exhaustive list of
examples as well as factors that might be
taken into account in deciding whether a
particular adjustment is reasonable.

40. What adjustments will be reasonable?
(cont.)
• Examples –
− Making adjustments to premises – widening a
doorway, providing a ramp, removing furniture for a
wheelchair user
− Allocating some of the disabled person’s duties to
another person
− Transferring a disabled person to an existing vacancy
− Altering a disabled person’s hours

41. What adjustments will be reasonable?
(cont.)
• Examples –
− Assigning a disabled person to a different place of work
or training
− Giving , or arranging for, training or mentoring
− Requiring or modifying equipment
− Allowing a disabled employee to take a period of disability
leave
− Modifying disciplinary or grievance procedures
− Adjusting redundancy selection criteria

42. What adjustments will be reasonable?
(cont.)
• A number of principles have also developed in
case law
• An employer will not breach duty to make
adjustments unless it fails to make an
adjustment which is ‘reasonable’

43. What is reasonable?
Fact Sensitive Question
•Smith v Churchill’s Stairlifts Plc [2006] IRLR 41 –
Court of Appeal held that the test of
reasonableness is objective and to be
determined by the Employment Tribunal.

44. What is reasonable? (Cont.)
Fact Sensitive Question (cont.)
•Rare example of legislation that requires ETs to
substitute their own opinion for that of the
employer and to decide if employer’s
time/resources should be spent in a particular
way.
•Reasonable adjustments provision – powerful
tool for Claimant

45. What is reasonable? (Cont.)
• No objective justification defence available
under EqA 2010 for failure to make
reasonable adjustments – proposed
adjustments either reasonable or not
• ETs must interpret the law consistently with
the Framework Directive

46. What is reasonable? (Cont.)
• No duty to take measures that would impose
a disproportionate burden on the employer
• Adjustments must be carried out in a timely
manner
• Duckworth v British Airways plc ET/330470/11
– a delay of six months in transferring a cabin
crew member from long haul to short haul
flights – unreasonable

47. Factors to be taken into account
• The following factors are listed in the EHRC
Code as factors which might be taken into
account when deciding what are reasonable
steps for an employer to take:-
− The extent to which the adjustment would have
ameliorated the disadvantage
− The extent to which the adjustment was practicable
− The financial and other costs of making the adjustment,
and the extent to which the step would have disrupted
the employer’s activities

48. Factors to be taken into account
(cont.)
− The financial and other resources available to the
employer
− The availability of external financial or other systems
− The nature of the employer’s activities and the size of
the undertaking.
• EHRC code states that “ultimately the test of
the ‘reasonableness’ of any step an employer
may have to take is an objective one and will
depend on the circumstances of the case”.

49. Ring v Dansk almennyttigt
Boligselskab & another C- 335/11
• The ECJ held that it was for national courts to decide
whether the burden on the employer is
disproportionate, taking account in particular of any
costs entailed, the employer’s size and financial
resources and any public funding or other assistance
available to the employer to comply.

50. Will the adjustments work?
• If an adjustment would not work – it ought not to
matter how big or small the undertaking or how
inexpensive the proposed step as the adjustment
would be a futile gesture BUT… note well –
− Leeds Teaching Hospital NHS Trust v Foster
UKEAT/0552/10
EAT stated that there need not be a ‘good or real
prospect’ of a proposed adjustment removing a disabled
employee’s disadvantage for that adjustment to be
reasonable.
An adjustment might be reasonable, and therefore
required, where there is ‘a prospect’ that it will succeed.

51. Will the adjustments work? (Cont.)
• It is wise for an employer to consider obtaining an
expert opinion on the likely efficacy of any proposed
step
• Deciding whether a particular adjustment would
overcome the disadvantage in question might
require the employer to consider a package of
adjustments.

52. Cost of adjustments
• The cost of possible adjustments, together with the
employer’s financial position, will be relevant to
whether the adjustments will be reasonable.
• However, the EHRC code warns that even if an
adjustment has a significant cost associated with it, it
may still be cost effective in overall terms – for
example, compared with the cost of recruiting and
training a new member of staff – and so may still be
a reasonable adjustment to have to make.

53. Cost of adjustments (cont.)
• Employers should not conclude that an adjustment
needs to be ‘cost effective’ to be reasonable.
• Large employers might well, given the resources, be
expected to make adjustments that are not, strictly,
cost effective.
• Nevertheless, even an employer with substantial
resources will not necessarily be
required to make very expensive
adjustments.

54. Cost of adjustments (cont.)
• Cordell v Foreign and Commonwealth Office
UKEAT/0016/11 – the EAT gave guidance on how ETs
should approach the issue of costs in reasonable
adjustment cases.
It said that costs, is ‘one of the central considerations
in the assessment of reasonableness’ but must be
weighed with other factors including the degree of
benefit to the employee, other points mentioned in
the EHRC code of practice as well as other factors.
The other factors being (potentially):-

55. Cost of adjustments (cont.)
− Size of any budget dedicated to reasonable
adjustments
− What the employer has chosen to spend in
comparable situations
− what other employers are prepared to spend and
− any collective agreement or other indication of what
level of expenditure is regarded as appropriate by
representative organisations
• EAT stated that Tribunals must make a judgment,
ultimately, ‘on the basis of what they consider right
and just in their capacity as…an industrial jury’.

56. Effect on workforce
• Tribunals should not only consider factors relating to
the disabled individual concerned, but should take
account of the wider implications, such as the effect
of the proposed adjustment on the organisational
workforce as a whole
• Unlikely to be a valid defence to a reasonable
adjustments claim that staff were obstructive or
unhelpful

57. Employer must bear the cost
• It is not reasonable for an employer to pass on the
cost of complying with a duty to make reasonable
adjustments to the disabled person.

58. Employer’s Defence
• Not under a duty to make reasonable adjustments if
it does no know or could not reasonably be expected
to know that the employee has a disability and is
likely to be at a substantial disadvantage compared
with persons who are not disabled.
• Case Law and EHRC Code – knowledge imputed to
employer

59. Thank You

60. Contact details
Stephen Jenkins
DD: 029 2039 1730
M: 07798 756 099
E: stephen.jenkins@geldards.com