Managing absence – an employer’s perspective

Employers must navigate the delicate balance between supporting staff welfare and ensuring operational efficiency.

Thomas Eastment, Legal Adviser at DAS Law, takes a look.

What are the legal requirements for employers in the UK when managing short-term and long-term employee absences?

Employers should ensure they have a policy in place which covers what responsibilities employees have when absent from work and the process that will be followed. Employers should first try to establish the reasons for absence and whether this will be short term or long term.

When an employee is ill, they are entitled to self-certify for the first seven calendar days and are under no obligation to provide supporting medical evidence. If the sickness exceeds seven days, the employer is entitled to request a fit note produced by a medical professional. When an employee returns from sick leave, employers should arrange a return-to-work meeting to confirm the reason(s) for sickness and if appropriate, conduct a risk assessment. Depending on the reason for sickness, an employer may need to consider implementing adjustments, such as a phased return to work, to help the employee.

Providing that a fair process is followed within a reasonable timeframe, employers can exercise some discretion when handling absenteeism and may have different methods of dealing with these situations as outlined in their own policy.

Some employers, for example, use the Bradford Points scoring system whereby incremental warnings are issued when certain trigger points are met. This considers spells of absence as well as their duration. Although this type of approach offers clarity, it can be viewed as an allowance by some employees whilst others may return to work prematurely following sickness to avoid a review meeting.

How should UK employers handle situations where an employee’s absence is due to a disability covered under the Equality Act 2010?

Employers will still be required to follow a fair process and act reasonably throughout. However, The Equality Act 2010 requires employers to make reasonable adjustments, thus ensuring that those employees with a disability are not placed at a substantial disadvantage. “Disability” is defined as a physical or mental impairment which causes a substantial, adverse and long-term effect on the ability to carry out normal day-to-day activities.

Less favourable treatment and failure to make reasonable adjustments can give rise to potential discrimination claims in the Employment Tribunal, exposing the employer to significant financial liability if required to pay an uncapped award of damages and adverse publicity throughout the hearing.

To mitigate these risks, an employer should ascertain the up-to-date medical position before taking action such as dismissal. The first step is to seek the employee’s consent to approach their doctor or consultant for a report. Under The Access to Medical Reports Act 1998, an employee has the right to inspect and request changes to medical reports before it is shared with their employer. An employer may wish to go one step further by paying privately for an occupational health report which will offer a more work-specific insight, noting the likelihood of return and specific workplace adjustments.

If an employee refuses to co-operate, an employer can proceed to a capability hearing with limited medical evidence. Reasonable notice should be given ahead of the hearing and the employee must be afforded the opportunity to attend with either a trade union representative or work colleague pursuant to Section 10 of the Employment Relations Act 1999. An employee is entitled to appeal the outcome of a capability hearing. It is good practice for different people to chair each stage of the procedure, each one more senior than the last to maintain impartiality.

What are the employer’s obligations regarding pay during an employee’s statutory and contractual sick leave?

Eligible employees are entitled to Statutory Sick Pay (SSP) for up to 28 weeks. If their contract of employment refers to an enhanced rate of pay, then this will have priority over SSP. An employer can lawfully limit eligibility for contractual sick pay to employees with a specific length of service, for instance six months. Other sickness policies might assert that an employer has discretion whether to pay contractual sick pay or not. However, an employer would have to justify their reasons for not paying the enhanced rate if challenged. There is also a risk of an unlawful deduction of wages claim being brought against them in the Tribunal.

In what circumstances can an employer in the UK lawfully terminate an employee’s contract due to absence?

Employers who follow a fair process can lawfully terminate an employee’s contract due to absenteeism in the following circumstances:

1. Unauthorised absence;
2. Repeated failure to follow reporting procedures;
3. Frequent short-term absences;
4. Long-term illness or incapacity.

How does the UK employment law regulate the use of ‘fit notes’ in managing employee absences?

Employees must follow any contractual reporting procedures within the employer’s policy, but do not require medical evidence for the first seven calendar days of their sickness. For prolonged absences, a GP’s fit note is required to confirm eligibility for statutory sick pay (SSP).

What are the legal implications for UK employers who fail to follow fair procedure when managing employee absence?

Failure to follow fair procedures when managing employee absence can have several legal implications for UK employers, including:

1. Unfair dismissal claims – the Tribunal will assess whether the employer followed fair procedures, including providing warnings, opportunities for improvement and had conducted a reasonable investigation prior to termination;       
2. Discrimination claims – an employee who believes they have been treated unfairly due to a protected characteristic contained within the Equality Act 2010 can bring a claim for discrimination; 
3. Breach of contract claims – employees can also pursue a breach of contract claim if they believe their employer has not followed the terms of their employment contract, including any procedures outlined for managing absence;
4. Reputation damage – failure to handle employee absence issues can damage an employer’s reputation both internally amongst existing employees and externally with stakeholders;
5. Financial penalties – if a Tribunal finds that an employer has unfairly dismissed an employee or discriminated against them due to absence-related issues, they could order the employer to pay compensation to the employee to cover lost wages and damages for injury to feelings. Additionally, the employer may incur legal costs associated with defending the claim.

To eliminate these risks, it is imperative that employers have clear policies and procedures in place for managing employee absence. Employers should also ensure that managers and HR are trained to handle absence-related issues fairly and consistently, and they should seek legal advice if uncertain about their obligations under employment law.

Need more help?

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You can access DAS Businesslaw by using the voucher code in your policy provider’s documentation.

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Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.