Dealing with sickness absence is a difficult and often daunting task for employers.

Employers can find themselves making simple mistakes very easily. The problem is that these mistakes can lead to a range of claims from employees, most notably for disability discrimination and unfair dismissal.

In this article, we will look at some common mistakes employers make and how you can avoid them.

1  Failure to follow the sickness absence policy

It’s a good start to have a clear and robust sickness absence management policy, but equally as important is ensuring that the policy is followed.

Your managers must understand the procedures. They should know what to do when an employee is sick, monitor absences for trends, see if absence triggers have been reached and take action when, and if, required.

Your employees should know how to report their sickness, what notes they need to present, how short-term frequent absences will be dealt with and what the repercussions for not following the rules are. Make sure that the employee can easily access the policy – it should be found in their Contract of Employment, Employee Handbook and/or the Company Intranet. It is also considered best practice to get your employees to sign a receipt that shows they have read and understood the policy.

2  Inconsistency when applying the policy

It is essential to ensure that all procedures are applied in a fair and consistent way to avoid any employee concerns or discrimination claims.

For example, if you are taking disciplinary action against the receptionist for unauthorised absences, you will also need to take the same action when your best office drinking buddy commits the same offence. If you take different action for the same offence, it is likely that an Employment Tribunal would find this unfair and potentially discriminatory.

3  Not carrying out return to work interviews

Often the value of ‘return to work’ interviews is underestimated.

It is an excellent way to probe into the reasons and nature of the absence. If there are signs that that they are suffering from a work-related illness or that they have a long-term health issue which could be considered a disability, you can consider what steps can be taken to assist the employee.

Equally, an employee who is not genuinely ill may be deterred from “pulling sickies” if they know they will have to go back to work and face a return to work interview.

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4  Not keeping accurate sickness absence records

It may feel like the employee is simply never at work but keeping records of every sickness absence will provide you with a real and accurate picture of their actual attendance.

One of the biggest benefits of keeping accurate absence records is that you can identify any trends or patterns and take action to rectify problems. Monitoring and recording absences may mean you realise that the absences:

• book-end shifts or weekends
• coincide with specific events (e.g. Glastonbury Festival or the World Cup)
• are significantly worse than others in the same team or working for you
• are work-related, for example, the employee is suffering from stress or many employees who do a particular task are suffering from similar ailments and having to take time off as a result
• indicate a serious health condition that require you to consider reasonable adjustments to assist the employee.

Accurate records also let you contact employees who are on long-term sick at suitable intervals. You should ensure that there are frequent reviews of the employee’s state of health and their ability to return to work. Keeping them informed of any important workplace changes will help them feel motivated and engaged, but you must strike a good balance. The employee must not feel cut off by their manager, but they also should not feel harassed or distressed by frequent calls or visits.

You must ensure that when recording employees’ attendance data, you are acting in compliance with data protection laws.

5  Not seeking medical advice

An Employment Tribunal will consider whether you properly assessed the employee’s condition or illness to find out their likelihood of returning to work before you decided to dismiss them. If medical evidence is sought and it reveals that it is very unlikely the employee will be able to return to work in the reasonably foreseeable future, an Employment Tribunal is likely to deem the dismissal fair.

Therefore, it is important that you seek medical evidence to fully understand the reasons for the absence. By getting medical evidence, you can find out if there are underlying health issues that could be discussed and addressed, or whether they have a condition which is considered a disability under the Equality Act 2010. If they do suffer from a disability, you will need to consider whether and what reasonable adjustments should be made in the workplace to facilitate the employee’s return to work.

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6  Failure to follow a fair procedure

You may have a valid reason for dismissal, but is essential that you follow a fair procedure. For example, in cases of long-term sickness absences, an Employment Tribunal will look to see that you consulted with the employee and explored how to support them back into work; made the necessary reasonable adjustments; sought medical evidence that confirmed that the employee is not likely to return at all or for a prolonged period and you warned the employee that their long-term absence could lead to dismissal. If you get the procedure wrong, you could end up with expensive claims.

It is highly advisable to seek legal advice before taking action. Our Employment Law Advisers can help you understand the risks and help you mitigate them.