Managing dependants’ leave, frequent absences and disciplinary meeting ‘sickies’
Sickness absences can have a significant impact on a business. They can result in lost productivity and unhappy customers, and sometimes involve employers paying for both the absent worker and his or her temporary replacement. They can also affect staff morale adversely if the absent employee’s duties are added to the workloads of his or her colleagues.
A well–thought-out sickness policy, conducting return to work interviews, and line manager training on managing sickness absence are widely acknowledged as helpful tools in this context, but how should employers deal with more tricky absences?
Time off for family illnesses
A family member falling ill can be a stressful time for all involved and research indicates that nearly three million working days are lost each year through parents taking time off to care for sick children.
Employees have a right to reasonable (unpaid) time off to deal with a dependant who has fallen ill, but this should be limited to the time necessary to make alternative care arrangements (usually no more than a few hours or at most one or two days). Where an employee has to continue to take time off for caring duties (for example, looking after an unwell child) flexibility can help. For example, offering the option to make up the time missed; working from home at flexible times during the day (perhaps when the child is asleep or when another parent is able to cover caring for him or her); or using flexi days, time off in lieu, annual leave, or unpaid leave to cover such absences.
Employers should be wary of reacting negatively to an employee absent because their child is unwell, as this could lead to a successful claim for indirect sex discrimination (it is accepted by the courts that a greater proportion of women have childcare responsibilities than men).
Organisations could also be at risk of a claim for disability discrimination if the family member concerned is disabled for the purposes of the Equality Act, as the employee will be protected from discrimination by association.
Of course, it may not always be possible to be flexible – not every job can be done on flexible hours (for example, a receptionist in a 9-5 office cannot answer clients' calls in the evening) or from home (for example, a factory operative). But an employer that can show it has tried to be flexible is less likely to be exposed to claims for discrimination and more likely to have a happy and productive workforce.
Frequent unrelated absences
Employees who have frequent sick leave episodes are likely to be managed through their employer's sickness absence policy, which can lead to disciplinary action, and, ultimately, to their dismissal. This may be an appropriate outcome in some circumstances. However, an employer must remain alert to the possibility that frequent sickness episodes might have an underlying cause that could be a disability under the Equality Act 2010. They could also signal a problem in the workplace, such as bullying or harassment by a colleague. Employers would be vicariously liable (responsible in law for someone else’s actions) for any such acts committed in the ordinary course of employment by their staff.
Line managers of employees who have taken frequent sick leave should discuss with the employee concerned whether there is any underlying cause or problem. This may encourage employees to voice their concerns and request any help needed, as well as ensuring the sickness absence policy is used fairly and appropriately.
Sickness prior to a disciplinary meeting
When an employee facing a disciplinary process becomes unwell, it is necessary to balance the requirement not to delay meetings unreasonably with making sure that the employee's ill health is properly accommodated, and he or she has the opportunity to put his or her case. Often it is the disciplinary proceedings that are the source of the illness and delaying proceedings may only exacerbate it.
An employer should adjourn the proceedings at least once where the employee becomes unwell and what period of the adjournment is appropriate will depend on the circumstances.
The organisation should also ask for advice from an occupational health practitioner to determine if the employee is fit enough to participate in the disciplinary process, and on what adjustments could be made to accommodate their ill health. For example, it may be possible to hold the hearing at a neutral venue or allow the employee to make written submissions rather than attend in person.
Maxine Williams is a senior associate in the employment law team at Blake Morgan LLP
For more employment law articles, visit HR-inform
