For a practice owner, dealing with sickness absence can cause much disruption within the practice.
It is not always easy to know the best steps to take or procedures to follow, whether it is dealing with short term but frequent absences or long term absences.
There have been many cases in the past where employees have been dismissed due to their sickness absence which has resulted in employers having to pay compensatory awards due to the dismissal being either unfair or discriminatory.
An employee can bring an employment claim for discrimination from day one of employment unlike an unfair dismissal claim which from 6 April 2012, an employee needs to have two years service to qualify.
It is important to know the facts of your employee’s sickness absence before making any decisions as to their future with the practice, as acting irrationally and not following a fair and reasonable procedure can put you at risks of a number of tribunal claims, one being discrimination where the compensatory award is unlimited.
Importance of written procedures
The law states (Section 1 of the Employment Rights Act 1996) that employers are obliged to provide employees with particulars of 'any terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay'. Therefore these terms must be stated in the employee’s contract of employment.
Another important aspect of managing sickness absence is to make sure you have written policies in place which will enable both you and the employee to be sure of the correct procedures and help eliminate disputes relating to this.
Policies are something which are not a part of an employee’s contract and therefore (as long as stated within the policies) can be amended by you at any time.
This would be beneficial in relation to medical and dental appointments.
You may want to change the procedure for such arrangements and if they are contained within your policy, can be amended when you wish without obtaining the employee’s permission.
Holidays and Sickness Absence
Should an employee be unable to take their pre-arranged annual leave due to sickness, an employee can now request to take that holiday at a later date when they are not on sick leave even if it has to be carried over to the next leave year.
It is advisable to update your employment contracts with a clause explaining this but also stating that they are only entitled to this as long as they comply with the Practice procedures. This would involve the employee providing you with a medical certificate on their return from sick leave and should apply also for a single day’s holiday request due to sickness.
Dealing with absences when they occur
Employees who are absent from work for reoccurring short periods of time can have a great impact on the Practice in terms of productivity, efficiency and profit. Therefore, it is very important that you are clear on how to deal with such absences so the procedure can be dealt with as quickly and easy as possible.
You must firstly obtain a self certification from the employee for absences of seven calendar days or less which is a signed statement by the employee confirming their dates of absence and reasons.
Short term and frequent absences can occur when it is pregnancy related. It is important to note that a woman is protected throughout her pregnancy until the end of her statutory maternity leave period. Subjecting a pregnant employee to any detriment or dismissing her is unlawful and will automatically be classed as sex discrimination under the Equality Act 2010 which, as stated above, compensatory awards in relation to this would be unlimited.
For absences of eight days or more, a doctor’s certificate should be obtained from the employee which is now known as a ‘Statement of Fitness to Work” or a “Fit Note”.
Long-term illnesses that are automatically a disability under the Equality Act 2010 are Cancer, HIV and multiple sclerosis.
Any long periods of absence where there is a concern as to the reason or whether you wish to know if the employee can return to work should be followed up with a medical examination by an occupational health specialist.
In order to carry this out, you should have wording allowing you to do this within the contract of employment or sickness/absence policy. It is extremely important to take this report into consideration when making a decision as to the next step to take.
Any employee who is off work for a long period of time whether it be due to sickness, injury or maternity leave should still be contacted with updates relating to the Practice or invites to any work events so as to show they are not being treated differently to any other employee.
Return to Work
Upon the employee’s return to the practice, the next fundamental procedure to follow is having a return to work meeting. This should be carried out after every absence and a return to work form should be completed.
This enables you to record the details of each absence which may raise issues you may need to be aware of i.e. ongoing illnesses and/or any disabilities and the need for reasonable adjustments to be made. It can also determine if the absence is work related.
Keeping a record on file will help you monitor not only the individual employee’s attendance record but also determine if there are any patterns of absence within the department and/or practice.
Keeping a confidential paper trail of such meetings and any informal discussions with the employee all help to show you have followed a fair and reasonable procedure, should a claim ever be brought against you.
When advice has been sought and a formal approach has been agreed to be the best procedure to take, meetings should be conducted by way of a capability procedure to ascertain the reason for absence, the likelihood of continuing absences, the effect it is having on the practice, and whether any reasonable adjustments should be put in place. Any warnings given as a result should be accompanied by a timescale and suggestions for improvement and the action that will be taken should no improvement be made.
The procedure should be seen as a way to encourage the employee to improve rather than to punish.
Although you should be kept up to date of an employee’s medical condition, the onus is on you to request the update and not the employee.
Having said this, contacting the employee in relation to their absence should not be over bearing or intrusive as there is a risk this could amount to harassment.
Again any employee returning to work should attend a return to work meeting as explained above.
To manage sickness absence efficiently and effectively:
- Make sure your employment contracts and policies are up to date
- Always carry out return to work meetings and keep a paper trail of any discussions and/or meetings that take place
- Always make sure you know the facts of the matter (which may involve an investigation to determine this)
- Always follow a fair and reasonable procedure
- Always take advice to put you in the best possible position.
Christina Meah is a para-legal with the dental employment team at Cohen Cramer Solicitors. For 20 years, members of the Cohen Cramer Dental Division have been advising dental principals, associates and practice managers on all of the legal aspects of buying, selling and running dental practices. With extensive experience in the dental sector the firm is ideally placed to understand and respond to the needs of dental practitioners and practice managers.
Please contact the employment team on 0113 2440597 for further information or visit www.cohencramer.co.uk.