Employment Law: Ask Us Anything… Related to Sickness Absence (Q&A session)

These are the most frequently asked questions taken from Judicium’s Employment Law ‘Sofa Session’ from the 15th of May with Employment Law & HR consultants Jenny Salero, LL.B (Hons), L.P.C., Kelly Rayner, LL.B (Hons), QLTT and Suzanne Ravenhall, Chartered MCIPD.

1. Can I contact staff when they are off sick?

It is a common misconception that you cannot contact staff when they are absent due to illness. Both employers and employees should remain in reasonable contact, but always consider the circumstances. What has happened? What does the fit note say? What had the individual said? In some circumstances, leaving long gaps between contact can make a return to work more difficult and prolong an absence.

2. Should staff provide cover work?

This very much depends on your own planning/cover procedures. It would be reasonable for a member of staff to provide their planning for the next day (or the week) if they are absence at short notice, as presumably this should be complete. If, however, staff are absent for lengthy periods of time they cannot be expected to have planned that far out.

3. Can I ask staff to cover someone off sick?

This depends on several factors, including whether you follow the STPCD and the length/nature of the absence. The STPCD makes clear staff can only be asked to cover rarely in unexpected circumstances. Therefore, if you had an early morning call about a colleague being absent that day, you could ask another colleague that was at work to cover on that occasion. However, if a colleague was signed off for three months, you could still ask, but this would not be in line with the rarely cover provisions of the STPCD and you are likely to get push back.

4. Should I hold a return to work meeting for every absence?

Ideally, yes! We appreciate time is short, but holding RTW meetings can be very beneficial:

• They can help to pick up on early signs of ill health or a bigger, underlying issue. You can try to tackle with your member of staff, before things escalate,
• They can help you to keep track of attendance - we would suggest that a note of trigger points is included on every RTW form, to help managers keep track of this.
• They can help to reduce absences that may not have been needed (i.e. 'frequent fliers' on Mondays and Fridays).

If managers can meet with employees, even for 5 minutes or so after each absence, it can have a positive impact on attendance.

5. After what period should I refer a member of staff to OH? 

Many policies refer to automatically referring a member of staff after four weeks of absence or as soon as stress related absences occur. Always consider why you are making the referral. What is the benefit? Policies are, of course, useful tools and guides, but employers should always consider the person behind the process.

For example, if you have a colleague with a broken leg that has been informed it should be healed in 6 weeks and there have never been attendance concerns prior to this, an OH referral at four weeks (because the policy says so) may not assist you. However, a return to work after 6 weeks or just prior to a return, or for further guidance if recovery is taking longer, is likely to be far more beneficial.

Similarly, employers should not wait until someone is off sick or has hit the relevant section of a policy. If you are concerned about a member of staff, consider whether a referral may be of benefit to both you and the member of staff.

6. What do I do if staff are not following the correct reporting procedure and call in late?

Before taking any action, employers should always do a preliminary investigation. What is the reason they failed to call? Is it a genuine emergency and it was not possible? Is this a regular occurrence and the employee fails to comply with policy? If it is the latter, this is something that can and should be addressed via the school or trust’s disciplinary procedures

7. What if someone does not provide a fit note?

The school or trust would need to contact the employee/next of kin to establish the reason for this, i.e., are they in intensive care? However, if absent staff regularly fail to provide fit notes, we suggest writing to the individual in the first instances requesting a copy of the note and explaining technically there is no right to SSP or OSP if a note is not received. This generally gets people moving! If the member of staff again fails to provide the notes, SSP and OSP can be withheld.

8. Do employees have the right to be accompanied at welfare meetings?

Technically, no. These are informal meetings that can take place at any time. However, your policy may be very generous and allow this, or it may be beneficial in the circumstances to exercise your discretion. For example, after a lengthy absence or for colleagues suffering from mental ill health. It is far better for the meeting to take place and for the school/trust to get engagement from the member of staff than to engage in discussions about who can/can't attend.

9. What if a member of my staff is refusing to engage or attend OH?

Employers should explore the reason for this with the employee. However, if you follow the Green or Burgundy books in respect of OSP, these documents make clear that continued receipt of OSP is contingent on an individual engaging with and attending an OH referral.

We find writing to staff to explain the benefits of a referral, how you need further information to support them and if they do not engage their salary may drop to SSP only helps to get people to engage in the process.

10. OH has suggested a number of supportive adjustments, nut not all the suggested changes are workable, what can I do?What if a member of my staff is refusing to engage or attend OH?

The legal duty to make and consider reasonable adjustments is only triggered if/where a member of staff is disabled from an employment perspective. Before this point, there is no legal duty to make adjustments, but of course employers want to be supportive.

If suggested adjustments are not operationally feasible, you don’t have to accommodate them, but you must explain and justify your decision - particularly if the employee is disabled. The reason cannot be because you do not want to.

However, consideration should be given to alternatives. What may be workable? Can you offer a combination of things suggested and alternatives? Ensure you always meet with an employee on receipt of each OH report to take their views on any suggestions and the content of the report. This could be informally or as part of the formal stages of a process.

11. What should we pay staff during a phased return.

This depends on your policy. In this sector as sick pay is so generous, you do not want staff to be better off at home than at work.

We would advise staff are paid in full. However, it is important to keep the phased return just that - generally these should last a matter of weeks.

If the phased return is suggested for several months or continues longer, we would suggest you consider a permanent adjustment to hours and therefore pay.

12. What if you have made reasonable adjustments for a staff member, but they are still struggling with returning to work/attendance?

If you can evidence all the adjustments you have made and show those adjustments have not worked,  you would potentially be in a position to dismiss. NB: Every individual case will be determined on its own facts, including the nature of the illness, the nature of their job, the adjustments made, the success plan, the medical advice, etc so please do seek advice before making the decision to terminate employment.

13. If an employee's doctor said they should distance themselves from work and are not well enough to attend any work meetings due to anxiety and depression, how should we proceed?

Look at the specifics of the fit note. What exactly is the GP recommending? If it is included in the sick note, you should consider factors like: why are they off sick; how long is the ban on work meetings; what can you do to mitigate it? Can you see the employee’s representative or a family member? Are there options for a virtual call or phone call? It does depend on the circumstances, but there are often workarounds.

14. Would you advise to have separate policies for short and long term sickness absences?

They don’t necessarily need to be separate documents but the processes for the two are very different. You need to distinguish how you manage those processes individually.

15. How do you treat a sickness absence that is later linked to pregnancy? Is it managed differently?

In terms of recording it depending on your system, you would want to include pregnancy related or something similar based on your options. It’s important to be mindful that women often do have sickness absence related to their pregnancies and you must not be discriminatory. Therefore, any absences due to pregnancy/pregnancy related sickness must be discounted. It’s important to categorise in your recordings the reasons for absence, especially when looking at patterns.

16. If a teacher is sick over the holiday period, are they entitled to take that period of leave back?

Not all school closure periods are paid annual leave for teachers. Teachers are paid for 52 weeks a year made up of 39 weeks term time, roughly 6 weeks annual leave and the remaining time is paid time off. In the instance that someone is off sick if they are off sick for a school closure like a half term week, they would have that opportunity to take that leave during another school closure later in the year. An exception would be when someone is off on long term sick and it may roll over into another year or if they leave after an extended long-term absence

17. If a member of staff who works part-time, but has to take a day off for treatment/medical appointments on an ongoing basis, can we ask them to make the time up/change their working day?

It depends on how you categorise the time off and the context of the medical treatment. One option is discussing with the employee to discuss about changing their working pattern to accommodate the appointments - there is no problem in asking!

Upcoming Training 

As mentioned in the sessions our Employment Law and HR Team have the following sessions coming up which may be of interest:

Managing Short Term Sickness Absence – Tuesday 21st May 2024 at 9.30am – 12.30pm

Breakfast Briefing – ‘What do I need to know about Settlement Agreements?’ – Thursday 23rd May 2024 at 9.30am – 10.15am

Managing Long Term Sickness Absence – Thursday 13th June 2024 at 9.30am – 1.00pm

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