Attendance Managementby Kate Russell
Sample capability procedure
The Company wishes to ensure the good health and regular attendance at work on the part of its employees. It also seeks to ensure that pressure is minimised for those people whose attendance record is good and whose workload is increased as a result of staff sickness. This procedure is designed to provide a framework within which the Company can achieve these important objectives.
The procedure sets out some formal steps to provide such a framework, but this does not prevent managers from carrying out a supportive welfare role by informally meeting staff with health difficulties and assisting them in any way which may be appropriate.
Throughout this procedure, all information concerning an employee’s health will be treated in the strictest confidence.
As part of a line manager’s role, home visits to employees on long-term sickness absence, or in other circumstances where the line manager thinks it appropriate, are positively encouraged.
Regard must be had to the Equality Act 2010 (EqA) which requires employers to provide reasonable assistance, resources and support to employees with a long-term physical or mental impairment, whether that came about before or since employment started. If the line manager does not know if the employee’s condition would constitute a disability, then he should work on the basis that it is and make all such reasonable adjustment to enable the employee to return to work.
Return to Work
When any employee who has been sick returns to work, his manager should arrange to see him at the earliest opportunity to provide a welcome, ensure that he is fit for work, complete the paperwork relating to certification and to update him on the current work in the department.
Absence Trigger Points
Where an employee has more than [three absences] or [seven days*1] sickness absence in any 12 month period, the Company will meet with the employee informally to explore the absences.
Short-term absences may be defined as those which last for less than [eight*2] calendar days (including weekends and bank holidays), and are therefore certified by the individual rather than by a medical practitioner. In considering employees’ records of absence of this nature, line managers will take into account the pattern as well as the total amount of sickness absence.
If a line manager feels that there is an unusually high level of sickness absence, for instance more than eight days within a twelve-month period, then he should meet the employee in the context of an informal welfare discussion. The first assumption should be that the employee has been absent for genuine medical reasons, unless there is specific evidence to the contrary. This should be made clear to the employee, so that there are no grounds for believing that an attempt to discipline him concerning absences is being made at this stage. The employee should be encouraged to talk about his reasons for absence, what medical or other help is being provided to him at present and whether he would like the Company’s assistance in any way to try to resolve the problems.
The manager and employee will discuss an attendance target appropriate to the employee’s health condition.
The employee will be reminded that he must take all reasonable steps to protect his health to enable him to attend for work.
Where short-term absences continue to take place, despite counselling and offers of assistance, the manager should meet the employee again. As before, the interview should normally be held in the context of a counselling and welfare discussion, but on this occasion, the desirability of a referral for independent medical advice should be discussed. Arrangements should be made by the manager for this to happen, with any necessary fees paid for by the Company.
Where the medical advice does not identify an underlying medical condition and there are no other mitigating factors, the manager will write to the employee, confirming the main points covered, noting any assistance which has been offered and indicating that the employee’s record will be kept under review. The employee will be advised that if he does not meet and maintain the Company’s attendance targets his attendance will be explore formally through the disciplinary route.
If there is an underlying medical reason for absence the employee will be taken through the capability process (see below).
If the employee refuses to undergo a medical examination he should be encouraged to attend, but if there is still a refusal the employee cannot be forced to comply. However, such a refusal does not prevent the employer making a decision as to appropriate actions. This would include a decision to dismiss. It is for the employer to make a reasonable judgement on all the facts which may be available, which should include medical evidence if possible. The decision may be made in the absence of medical evidence if the employee objects without reason.
If the employee does not have any underlying medical condition and does not meet the expected attendance target the manager will take him through the formal discipline procedure on grounds of poor attendance.
Consideration of Termination of Employment
If after going through the formal process (the length of which will be determined by circumstances), the employee’s attendance remains below that required by the Company, termination of employment will be considered.
If there is no underlying medical reason for the absences, the employee will be taken through the disciplinary procedure and may ultimately be dismissed for some other substantial reason (SOSR).
Deliberate non-attendance at work may be regarded as gross misconduct, depending on the circumstances and therefore the employee should be informed that the result of a disciplinary hearing may be dismissal without notice.
At all stages of the formal procedure, employees have the right to be accompanied by a trade union representative or work colleague. Companions are able to help the employee prepare for the meeting, help him put his case, make representations, ask questions on his behalf and also sum up the case for the employee. However, companions may not answer questions on behalf of the employee.
Right of Appeal
Where an employee is dismissed either for SOSR or on grounds of ill health capability there is a right of appeal. In most cases this will be to a director.
Where an employee has an underlying medical condition the capability process will be used. In these circumstances employees may have short term absences linked by the same condition, longer term absences or their performance at work may deteriorate.
The approach for dealing with absences where there is no underlying medical condition is unsuitable for a capability ill heath situation. If there is an underlying reason for the sickness absence, the context of termination is the inability of the employee to properly discharge his duties. In this case, consideration should be given to other employment options, such as light duties, redeployment to a different job, reductions in hours or adaptations to the existing job role. If these would present an acceptable solution, they may replace a decision to terminate the employment. In a capability case the Company will take medical advice and seek to balance the needs of the Company and the capabilities of the employee.
Unless there is evidence to the contrary, any employee who has been absent on certified sick leave for more than [a month*3] will be treated as absent on grounds of capability ill health.
There should by then have been contact with the employee by his manager by telephone and/or by visits to ascertain his progress and to determine whether there is any practical assistance which the Company could give. This should be done in the context of genuine welfare assistance.
Provided that the employee agrees to it, the manager should ensure that there is continued contact with the employee. This ensures that the employee does not feel forgotten by the Company.
Under the EqA, there must be an assessment of the support and needs required for the employee to attend work. This includes looking at issues such as reduced hours for a period of rehabilitation, reasonable adjustments to the workplace and/or working conditions, reasonable adaptations or modifications to the premises and equipment and possible reallocation of duties. Reasonable time off to attend medical appointments will also be given.
If the employee is unlikely to recover sufficiently to enable a return to his full previous duties, the possibilities of finding alternatives or a reduced level of work must be considered. There is no obligation to create an unnecessary job to meet the employee’s needs, but all reasonable steps should be taken to identify a job which the employee is able to do – where appropriate with the benefit of training and again by making suitable adaptations to the workplace and/or equipment.
His manager should discuss options frankly and fully with the employee and then notify him of the decision made in the light of that discussion.
A further possibility, if the employee agrees, is practical assistance (time off, references and so on), in the finding of less onerous or more suitable employment outside the Company.
No Prospect of Recovery
In cases where it becomes clear from all the evidence, and after proper assessment, that it is really not practicable for the employee to return either to his previous job or to other employment within the Company, termination on grounds of ill-health needs to be considered. This must be considered in consultation with the employee and it is not in any sense a disciplinary matter. It is not therefore appropriate to issue warnings.
If termination is felt to be necessary, the manager must write to the employee to set up a formal meeting. If they have not already been disclosed, the employee should receive details of the medical report. The employee has a right to be accompanied by a fellow employee or trade union representative. Sufficient time should be allowed for the employee to arrange for the companion and this may be of the order of ten days to two weeks.
Before any final decision is taken the employee should be asked for his views, consulted regarding the feasibility of alternative employment and presented with the realities of the situation.
The ultimate decision should be taken by the employee’s manager and only after the receipt of medical reports which support the view that there will not be fitness for work in the foreseeable future and normally not until at least [six*4] months has occurred. In considering timescales, the nature of the position held by the employee, the importance of replacing him and the feasibility of providing interim cover are valid factors, so an early decision may in some cases be appropriate.
There may be agreement that termination is the only option. But it may be necessary to terminate without the employee’s agreement and if so the employee must be advised of a right of appeal to a member of the senior management team.
In cases where it is clear that illness is leading to death in the near future, it would be inappropriate to embark on formal procedures and welfare assistance to the employee and his family should be provided as far as possible.
- Having two alternative trigger points means that any concerns are caught and explored early.
- What is short and long term absence is not defined by law. You may wish to make this a longer period, for example, some organisations say anything up to 28 days is short term.
- You may wish to amend this period.
- In a small business you may wish to reduce this to three.
For specific advice on managing employees with psychological health problems, see the topic on Psychological Health at Work.