Short Frequent Absences – (Managing Absence – Part 2)

This is the second in a series of articles by Antonia McAlindin, CCIPD, BA, LLM Barrister.

Over the years tribunals have laid down the rudiments of a good absence procedure. In addition, the latest ACAS Code of Practice distinguishes between absence due to an underlying problem (and hence more likely to be linked to a disability) and absence which justifies warnings. It stresses the need for good records. The basic procedure for short term absence is…..

• return to work interview in all cases (see HSE “Managing sickness absence and return to work)
• investigate – records- pattern/frequency
• counsel
  • informal
  • welfare orientated
  • deficiencies
  • levels
  • reasons
  • improvement required
  • consequence of no improvement

If no improvement:

Refer to Occupational Health Practitioner (this may give no valuable information but is intended to eliminate any underlying health issues which require a different process). Doctors are reluctant to provide detailed health information and will only give information on health at all provided the individual has given consent (see consent under data protection and human rights issues). Note too that the fourth data protection code appears to envisage only Occupational Health having knowledge of the reason for absence and only telling managers whether absence is genuine. This is not particularly helpful as managers should assume all absences are genuine unless there is evidence to the contrary. What they do need is advice on whether there is an underlying problem as this may mean taking a different course of action.

The purpose of the question is to ascertain whether there is an underlying problem and if so what can be done to alleviate the consequences. Questions should include:

• is there an underlying problem?
• is treatment needed?i
• is it work related?
• prognosis?

Note that it is usually impossible to tell after the event, particularly if illnesses are not related.

Where there is no underlying cause, this is managed as attendance only ie warnings (many employers do not like the vocabulary of warnings – it does not seem to sit well with genuine absence) for attendance, review dates, standards, advice that continuance may lead to dismissal, opportunity to make representation.

Tribunals distinguish between cases where an employee is suffering from an underlying illness and cases where the employee suffers from repeated absence due to unrelated complaints. The features of a fair procedure differ depending on the category in to which a case falls. In Royal Mail Group plc v Smith EAT a postman was dismissed for persistent absenteeism. He had a poor absence record with bouts of absence throughout his employment. Under the Company policy this was dealt with as a disciplinary matter. The procedure contained three stages with disciplinary warnings and eventually dismissal.

He had been subject to several warnings throughout his employment. However in the past two years of his employment his patterns of absence had changed from frequent short absence to longer periods eg 74 days for a heart infection which led to a stage three warning and dismissal. He successfully claimed unfair dismissal.

They concluded that it was unreasonable to put him on a stage three dismissal given the reasons for his last periods of absence. Insufficient consideration had been given to mitigation ie that his later absences arose from substantive medical conditions. A reasonable employer would have taken this into account and given him the chance to improve his record.

This is problematic as few absences are either short frequent leading to disciplinary action or long term leading to health retirement, disability issues. Many are a combination of both and either way have a significant impact on the workplace and other employees.

No underlying medical problem

Where there is no underlying medical condition, cases will be dealt with under a warning procedure after ascertaining the true medical condition – this has nothing to do with whether the individual reasons for absence are genuine. It is the level of attendance which is causing concern and the damage to the organisation.

In Newalts Insulation Co Ltd v Blackman, it was held to be impossible to set a definitive level beyond which discipline would be carried out. Each case had to be considered on its own circumstances.

In Lynock v Cereal Packaging Ltd the EAT acknowledged the difficulty of providing a reasonable prognosis where absence was intermittent and reasons unconnected and held in certain cases there was less need for detailed medical investigation. The case also held that there was no need to wait until sick pay ran out before dismissing an employee.

Employers should take account of:-

• nature of the illness;
• likelihood of recurrence;
• length of absence and gaps;
• need for the work to be done by the particular employee;
• impact of absence on others;
• any absence control policy;
• whether the employee is aware of the consequences of continued non attendance.

Note that where absences are due to an underlying problem which may be predictable but leads to unacceptable levels of absence, it will be important to remember this may be a disability. However even so where there is no adjustment or where an adjustment makes no difference, termination may be the only alternative.