Long Term Absence - (Managing Absence - Part 3)

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

Warnings are inappropriate in such cases. The overriding object of the procedure is to gather sufficient information about the nature and extent of the illness or disability to enable the employer assess the situation, consider the appropriate response and come to a reasonable decision. It is normally necessary to consult the employee (at home if necessary) and seek medical advice on the likely duration of the illness and the chances of recovery (Spencer v Paragon Wallpapers Ltd, East Lindsey District Council v Daubney).

Note that since the introduction of the statutory dispute procedures, employers must conduct a hearing with the employee prior to any dismissal. This can be problematic for long term sick employees who may be reluctant to attend a hearing. The regulations provide, in such a case, that management should postpone the hearing but only once. Thereafter the employer may have to take a different tack in dismissing eg seeing the person off the premises, seeing a representative or dealing with the employee through the post.

The 1988 Access to Medical Reports Act makes it obligatory to gain an employee’s consent when approaching a GP for information. The GP should be informed of the nature of the employee’s job (Securicor v Laird). The data protection act also covers sickness and absence information, distinguishing between the former as occasions, duration and frequency and the latter ie reasons for absence ie health data. The latter constitutes “sensitiveâ€? data under the act which makes it harder for the employer to access. The fourth data protection code suggests that employees must give explicit consent, freely given without penalty or misleading information or under duress. A significant debate is currently taking place between Government and GPs over the latter’s role in providing information. It is general held that the GP feels that it is not his or her place to tell an employer what is wrong with someone and they are not qualified to make assessments regarding the work done. This makes the obtaining and assessing health data particularly difficult especially for long term sickness which might constitute a disability and place a burden on the employer to make a “reasonable adjustmentâ€?. The Government is proposing new legislation on rehabilitation and the debate on access to information will continue.

The employee must have the opportunity to obtain his own medical report (Liverpool AHA v Edwards). However this may only be appropriate if there is some dispute as to the nature of the condition. With disability legislation there is a great deal of emphasis on reasonable adjustments and so employers must take steps to ascertain through risk assessment to find out what adjustments might work. If the employee refuses to have a medical, a decision can only be taken on the basis of the information available (Leeves v Edwards).

In some cases specialist advice should be sought on the future prognosis (Nowden Int Ltd v Miller). The doctor should know the reason for which the information is being asked and that employment may be terminated (Hobard Manufacturing Ltd). Alternatives to dismissal should be considered (Fairweather v Scottish Regional British Gas Corporation). Alternative employment may be an option (Garicks Ltd v Nolan) although there is no obligation to create a special job (Manweb v Taylor). However there may be an obligation to transfer to an existing vacancy (Archibald v Fife Council).

In summary, for long term absence:

• discuss with employee;
• find out true medical condition via GP, OHP, specialist - obtain consent, tell GP about employee’s job and reason for enquiry;
• consider medical report;
• consult with employee; not warning; (Milk Marketing Board v Grimes);
• give employee opportunity to produce his own report;
• the manager must take the ultimate decision not the OHP (William Computer Services Ltd v Passmore);
• consider alternatives, eg alternative employment, modified employment, early retirement (Merseyside & North West Electricity Board v Taylor).
• consider whether you can be expected to wait any longer and effect on other workers (Ali v Tillotsch).
• Where absences are frequent but for a specific, connected reason the procedure is likely to be similar to that for long term absence. Medical advice and consultation are important. The employer must decide at which time such absences can no longer be tolerated.

Information

In most cases the individual will be unaware of the details of his attendance record and will deny the detail. The fundamental basis of control is an effective interview on the day the employee returns to work. The warning approach is not appropriate at the outset.

The first objective is to determine the cause of the poor attendance. This requires analysis of the patterns and frequency of claims which means managers must have some sort of basic information in the form of a calendar. Subsequent interviews may have lead to warnings for poor attendance if no underlying cause is identified.