Cut staff sick days by managing them

What’s new in employment law? Solicitor Henrietta Donnelly examines the updated guidance issued by the arbitration service ACAS on managing sickness absence.

As independent practitioners expand their services and start growing support teams, the challenges of being an employer become increasingly important to understand and manage. 

An essential resource for all employers are the guidance and documents produced by ACAS –the Advisory, Conciliation and Arbit­ration Service. These are regularly updated and reflect the lessons learnt and best practice from the large number of issues it manages daily.

One of the most recent documents updates its guidance on managing sickness absence. This is very helpful because it aims to try and reduce the impact of sickness absence on both employers and employees.

Best practice

The new guidance recommends that employers review their sickness absence policies and procedures in order to ensure they are up to date and show best practice.

The updated guidance covers:

  • Holiday entitlement and sick pay;
  • Proof of sickness and fit notes;
  • Covid advice;
  • Time needed off for parents and or dependants;
  • Time off work for bereavement;
  • Supporting disabled people at work;
  • Returning to work after an absence;
  • Producing absence policies;
  • Keeping records and reducing sickness absence; 
  • Absence trigger points.

Below are some elements of the new guidance in further detail that we feel are of particular interest to independent practitioners.

Recording and monitoring sickness absence

Most employers will likely already have processes in place to record employee sickness absences. 

The last day of sickness is the day the employee returns to work rather than the day before. It is worth noting that sickness absence is viewed as continuous and so weekends and bank holidays factor into the calculation of how many days are taken.

It is essential that records recording sickness absence are accurate and up to date. This information can help employers keep track of different types of sickness absence, rather than simply looking at collated statistics, which can be misleading. 

This also assists in avoiding errors such as noting pregnancy absence as sickness absence, which would be discriminatory.

Accurate records also assist with establishing whether an employee has an underlying medical condition which could be the cause of repeated absences. 

This will enable the practice to try to work with the employee to try and reduce periods of absence and encourage a return to work where possible.

Fit notes and self-certification 

Employees might need a fit note when they are off sick. A fit note is an official statement from a registered healthcare professional giving their medical opinion on a person’s fitness for work. 

If someone is off sick for seven calendar days or less – including weekends – they do not need a fit note. They can tell their employer they are not well enough to work. They do not need to provide medical evidence. This is called ‘self-certifying’ their sick leave. 

If an employee is off sick for more than seven calendar days, they should get a fit note from a registered healthcare professional. This is the case even if the employee was not supposed to be at work for some of the seven calendar days.

Certification can be managed well with efficient processes and communication with staff so that they understand the requirement to provide certification on the eighth day of sickness absence. 

It is important to make clear that weekends, bank holidays and non-working days need to factor into the calculation of when medical certification is needed.

Long-term sickness absence

Long-term sickness can be a complex issue and it is a key area to handle appropriately and with sensitivity. 

It can be a high-risk area for employment tribunal claims if mismanaged, and it is always best to seek the appropriate advice when managing long-term sickness absence.

When an employee has been on sickness absence for longer than 21 days, it is helpful for the relevant manager to liaise with the employee about keeping in touch on a regular basis. It is recommended this is done every fortnight and either via a phone call or by email.

Furthermore, it is important for there to be a more formal meeting, either online or via phone, once a month in addition to the regular keeping in touch. 

This meeting will review the sickness absence and look at how to help enable the employee to return to work. 

For these meetings, it would be useful to refer the employee to occupational health services in order to get the best possible advice and recommendations on what adjustments can be made to help support and facilitate a return to work. 

The employee may be accompanied to these meetings with either a trade union representative or a colleague and a human resources representative should also be involved throughout this process.

While an employee is absent due to sickness it is important to keep them informed of any significant developments in the practice to ensure they feel included. 

This can include promotions and job opportunities as well as any restructures and it is important that the employee knows that they are able to engage with any changes that may affect them.

Return to work meeting

Regardless of the length of a sickness absence, when an employee returns to work, it is important to have a return-to-work meeting with them. It can be an informal discussion between an employee and their line manager. 

This is important as part of your duty of care to the employee in ensuring that they feel ready to return to work and any required adjustments have been noted and actioned. 

It can also be helpful to see if there are any general ways to help reduce sickness absence by reminding the employee of any relevant well-being initiatives that are available and seeing whether any personal targets can be implemented.

Absence trigger points 

The guidance also explores the issue of absence trigger points for when an employee has taken a large amount of sick days or there is a high number of ‘random’ sick days. The guidance recommends using a review points system that looks at the number of absences within a certain period of time and the length of these absences.

If an employer does choose to use this system, it needs to be carefully set out in their sickness absence policy so that employees are aware of it. 

The guidance stresses that absence trigger points should not be used to automatically punish employees and that it is important to communicate and work with the employees to try and find the best solution and way forward. 

Absence reviews are recommended as a way of looking at the cause of the absences as well as checking in with an employee.

It is important to carefully review each employee’s individual situation when reviewing sickness absences. For example, an emp­loyee with a disability that requires absences for appointments is likely to reach an absence review point more quickly. 

Being mindful about an employee’s circumstances when reviewing absences and showing flexibility are simple ways of managing absences affectively and sensitively and avoiding allegations of discrimination.

Sickness and absence because of long Covid

A legacy of the pandemic has been the emergence of ‘long Covid’, which can cause fluctuating symptoms that last for a long time after the infection. As this is a condition which is still being understood, it is important that employers are aware that the effects of long Covid can come and go and sickness absence can fluctuate.

It vital that employers communicate with the employee in question and engage properly with occupational health to assist with arrangements to help enable support for the employee and facilitate their return to work.

The key theme of the ACAS updated guidance is to encourage employers to use sickness absence information to help manage employee leave effectively and ensure best practice is followed. 

There is also an emphasis on the need for effective communication and flexibility when managing sickness absence. It is also important to take advice from occupational health and employment law specialists, when necessary to avoid any potentially discriminatory conduct.

First published in the November edition of Independent Practitioner Today.