Case Study – Managing Absence – typical problem areas:

A medical certificate is sacrosanct (Hutchinson v Enfield)

Wrong - a certificate by itself is not enough to guarantee payment. It is up to management to be satisfied that the illness is genuine and that it justified the length of absence. However care must be taken to ensure that the contractual issues are clear. The Med3 is designed to deal with statutory sick pay. Employers have often chosen to use it as an organisational tool but could choose not to. See below for information on GPs’ attitudes to the Med ie often they are reluctant to consider phased or part-time return and reluctant to divulge too much health information. See also proposed reforms.

Alcohol, drug, social problems

Discipline is rarely appropriate.  The employee needs help and this should be provided as far as possible in the first instance. If, however, attendance continues to deteriorate the employee must be counselled and advised of the consequence of continued absence.

Absence is a medical problem

Wrong - absence is a management problem and the Occupational Health Department will not make the termination decision. As indicated above, the role of the OHD is to provide information to enable management to make a decision. This decision does not relate to the genuineness of illness but rather to the lack of attendance at work or incapability.

Nothing can be done until sick pay is exhausted

Wrong - action should always be prompt. Tribunals have held that dismissal may be fair even though sick pay is not exhausted. It is only one of many factors to be considered. Our agreements talk about eligibility for sick pay rather than entitlement.

The employee can refuse to have a medical

Company Agreements provide a contractual right to request a medical. However the Company obviously cannot force an employee to have a medical. In any case the 1988 Access to Medical Reports Act lays down specific provisions with regards to medicals. If the employee refuses to have a medical, any decision will have go be taken in the absence of information. Obviously the employee could not then challenge this at tribunal. See also data protection issues.

The manager cannot visit or phone the employee

Wrong - it is up to the Company to decide on control procedures and to be satisfied as to the genuineness of a claim for sick pay.

Conflict between the GP and OHP decision

Tribunals have allowed preference to be given to the Occupational Health Department decision as the OHD knows the job better. However it is always wise when approaching a GP to outline just what information is required and to indicate the type of work the employee does. It may, in some cases, be necessary to get a specialist report. If the GP says the employee should come back but the Company refuses, the full sick pay must continue. If the GP says the employee should not come back and the OHP disagrees then a decision will have to be made as to whether sick pay continues bearing in mind that SSP rules may differ.

NB only the OHP should make direct contact with the GP.

Withholding pay

This is a contentious area partly because of the Wages Act rules on deductions and also because of breach of contract problems. However sick pay is only paid if the Company is satisfied about the genuineness of absence and can therefore be withheld if absence is not genuine or is felt to be too long or procedures have not been followed, eg employee has not phoned in on time or just failed to turn up. As always SSP rules must be borne in mind. There is no contractual provision to withhold for self induced injury, eg fighting and SSP rules do not allow this.