How to avoid that sickly feeling by managing absence in the right way

We all know that there are laws that govern the employer and employee working relationship, so you could be forgiven for asking: what legislation actually covers absence management?

There are no specific laws as such but as the absence management process can lead to dismissal, employers should take great care when dealing with such cases.

Employers face significant risks when dealing with an employee’s whose absence reaches the stage where it puts their future employment in real jeopardy.

Disabled employees have protection under the Equality Act 2010 (1). Employees with over two years’ service can claim unfair dismissal if their employment contract is terminated and there is no fair reason to do so.

As with any form of dismissal an employee can make a claim for unfair dismissal even if there was a fair reason for it, but the employer reached the decision to dismiss using the wrong procedure (2).

It is vital, therefore, that all employers, regardless of size, act lawfully and do so by dealing with absence management concerns in a way that is fair and reasonable.

There should be clear and established policies and procedures in place to manage sickness absence. Such policies should be accessible and communicated to all staff.

How employers measure absence and decide when to take formal action regarding attendance concerns, will vary from organisation to organisation. Many use the Bradford Factor, which is a mathematical formula that, when used, gives you a score based on someone's absence patterns (3).

The higher the score that the formula gives, the bigger the problems of the person's absence pattern. The system has its critics.

While the Bradford Factor can be considered an effective tool to deal with those throwing a sickie or having a duvet day it can cause problems when an absence is disability related as the formula is said not to account for such cases.

Whatever system is used for absence management it should explain how concerns will be dealt with and make clear an employer’s expectations on attendance. It should also include a clear absence reporting process.

Long-term absence, an absence lasting four weeks of more, is always a concern for an employer. Any procedure to deal with such instances should explain the trigger points where absence will be deemed excessive and may lead to formal action being taken.

It is vital that any absence is managed in the right way; employers should avoid a one size fits all approach. If an employer adopts such an approach and it disproportionately affects a disabled employee then it can lead to a claim for indirect discrimination (4).

The lawfulness of treatment by employers of disabled workers who have taken a period of absence that has triggered sickness absence procedures has been tested in a number of cases.

Despite this it was reported in a 2018 study conducted into employees with diabetes that many had been disciplined for taking time off from work (5).

The survey of UK employees living with both Type-1 and Type-2 diabetes suggested that 19 per cent had faced disciplinary action for missing work as a result of the disease.

Another 25 per cent claimed that they had been questioned over sick days they had taken, while 12 per cent said they had been refused time off, despite this being prohibited by employment law which protects people from discrimination as a result of the condition

In accordance with the Equality Act an employer is under a positive obligation to make reasonable adjustments to any policy where disabled employees are put at a substantial disadvantage because of their condition. Such an adjustment could be to relax the potential disciplinary sanction imposed upon the employee if they are disabled.

However, the Act seeks to strike a fair balance. If an adjustment would remove the disadvantage suffered by the disabled employee, but it is not reasonable from the employer’s perspective then the law does not force it upon them.

ACAS provide comprehensive guidance on conducting a fair absence management process (6)