What Can You Do If Your Employee Goes Off Sick During a Disciplinary Procedure?

It is not uncommon, during disciplinary proceedings, for the employee in question to go off sick, whether at the start of the investigation of the charge or during the process itself. The key is for you, their employer, to manage the situation carefully, to avoid any suggestion that you are acting unfairly. At the same time you need to keep the disciplinary process intact until it reaches a conclusion.

If an employee goes off sick either when they are first informed of the disciplinary charge, or at any point during the investigation, you should continue with the investigation as far as possible, in their absence. This means that you should interview and take statements from any other witnesses to the disciplinary matter, before memories start to fade. The investigation should be completed in all respects, except for any enquiries that need to be made of the employee in question.

Seeking Medical Advice

Where the employee’s sickness absence is due to a minor or short-term condition, such as a cold or flu, this is unlikely to cause you any great difficulty. You should just wait for your employee to return to work and continue with the disciplinary process when they are back.

Where the employee’s absence seems likely to be more prolonged, you may want to get confirmation from a medical professional as to whether or not the employee is well enough to take part in a disciplinary process. An employee who is too sick to attend work may be well enough to attend an investigatory meeting or a disciplinary hearing. A medical opinion should be obtained from the employee’s GP, from a company doctor or from an occupational health adviser.

If the employee is likely to be off sick on a long-term basis and is not well enough to undergo any part of the disciplinary process in the meantime, you might have to put the disciplinary proceedings on hold and advise the employee that the matter has been placed on hold pending their recovery.

You can also invite your employee to make written submissions, rather than attending a disciplinary hearing in person, or allow them to nominate a representative to attend the hearing for them.

When is it Fair to Go Ahead?

Factors that will help you to decide whether or not it is fair to proceed with the disciplinary process without the employee include:

  • the importance of dealing with the disciplinary matter promptly
  • how long the employee has been off sick and whether or not there is any likelihood of a return to work in the near future
  • whether or not a long delay in dealing with the matter might be detrimental to other employees.

There is risk involved in holding a disciplinary hearing and dismissing an employee in their absence, when they are off sick, as a tribunal may find that the dismissal is unfair. The tribunal may consider that if the employee had been given the chance to answer the disciplinary charges, they would not have been dismissed.

How Can You Adjust the Normal Procedure?

You can adjust the standard disciplinary procedure by taking any of the measures below, which can help to encourage the employee to attend and take part in the process:

Venue – think about holding the disciplinary hearing at a venue that will reduce the stress caused or to accommodate any physical needs.

Representation – where it appears that the employee’s illness may affect their ability to explain their case, they may be represented in the process by a colleague, union official or someone else approved by you.

Written representations – where the employee has difficulty in explaining their case, you could allow them to rely on written representations.

Documentation – make sure that the employee receives all documentation relating to the disciplinary process well in advance to allow them to prepare fully, taking into account any effect that the employee’s health may have on their abilities.

Timings – matters should be dealt with promptly, but you can allow extra time for any stage of the process, including the duration of a disciplinary hearing and the need to take appropriate breaks.

The Legal Issues

The priority in handling any disciplinary process is to give your employee a fair hearing. The only way of absolutely guaranteeing this, is for the employee to attend and participate in a full disciplinary hearing.

It is therefore best if you can make every effort to adjust the process so that your employee is able to take part. Only when all the other options have been considered, should you conduct the hearing in the employee’s absence. The following principles of natural justice must be followed:

  • the employee must know what they have been accused of
  • the employee must be allowed to state their side of the case
  • you must give fair and impartial consideration to the employee’s side of the story.

Finally, the opportunity to appeal is even more important where the employee has been denied the opportunity to attend a disciplinary hearing in the first place. A full appeal hearing can ‘cure’ any unfairness in the disciplinary hearing itself, so it is in your interests for a full appeal hearing to take place if possible.

Handling disciplinary procedures can be tricky at the best of times. They are only made harder if the employee in question goes off sick during the process. As an employer, you need to make doubly sure that you follow your company procedure for the fair treatment of your employees. If you’re in any doubt about how to handle a disciplinary procedure, please contact me for some advice first. You can call me on 0118 940 3032 or email sueferguson@optionshr.co.uk.

Six Common Summer Employment Issues

With high temperatures possible during the summer months, in this blog we’ll look at some employment law scenarios that you may have to deal with, as an employer.

Maximum office temperatures – The Workplace (Health, Safety and Welfare) Regulations 1992 state that the temperature in the workplace needs to be “reasonable”. However, there is no maximum temperature. What is reasonable will depend on the nature of your workplace and the work being carried out by your employees. Factors such as whether or not the work is strenuous or physical will need to be taken into account.

Unauthorised time off – If a holiday request is refused but your employee goes ahead and takes the time off anyway, it’s important not to jump to conclusions. You should carry out an investigation to establish whether or not the absence was for genuine reasons. If, however, there is no credible explanation from the employee, it may become a disciplinary issue and your disciplinary process will need to be followed.

Summer dress codes – It may be reasonable for you to adopt a more relaxed dress code during the summer months. However, the extent to which your employees may be allowed to dress down when the temperature rises will in part depend on the role he or she performs.

In the case of customer-facing roles, certain standards of presentation may need to be maintained. For health and safety reasons, it may be necessary for employees to continue to wear protective clothing, irrespective of summer heat.

One way or the other, you should ensure that the dress code is reasonable, appropriate to the needs of your particular business and does not discriminate between groups of employees.

Competing summer holiday requests – Under the Working Time Regulations 1998, you are not obliged to agree to an employee’s request to take holiday at a particular time, unless the employment contract provides otherwise.

If competing requests for holiday are received from different members of staff, your managers may prioritise requests, provided that they do this in a way which is fair and consistent, for example on a first-come, first-served basis.

To avoid the short periods of notice for requests and refusals, it makes sense for your business to have its own holiday policy in which you can set out your own notice provisions and other arrangements relating to holiday.

Late return from summer holiday – Issues may also arise in the case of an employee who returns late from his or her summer holiday. In the first instance, you should allow the employee the opportunity to provide an explanation. Supporting evidence, for example a medical certificate in the case of ill health, should be requested.

However, if the explanation does not appear genuine, you will need to consider following your disciplinary policy.

Summer work experience – The school summer holidays are typically a time when employers offer school-age children the opportunity to carry out work experience. You do not have to pay a child of compulsory school age while on work experience. However, all other rules and restrictions on employing young people will apply, and relevant approvals from the local authority or school governing body will need to be obtained.

Is your business ready for more heat this summer? If you need any advice regarding working conditions for your employees over the summer, just get in touch. You can call 0118 940 3032 or email me at sueferguson@optionshr.co.uk.

Source: XpertHR

How Do You Handle Winter Staff Sickness?

After a few months of cold winter weather and numerous ‘bugs’ going around the office, you might be wondering how best to handle winter staff sickness issues and how to keep your business running at full capacity. This blog will give you some tips on how to do this, until the better spring weather arrives.

How are you and your staff coping with the winter weather and the cold and flu bugs that always do the rounds at this time of year? Many people will need a bit of time off at some point during the year, to recover from an illness, so what are the benefits of managing absence in a proactive way?

Both long and short term absences can cost a huge amount – both financially and in terms of manpower. It’s never an easy conversation to have with your employees and it can be difficult to keep up with what action you can take, to keep within the law. The bottom line is this – do nothing and the problem won’t go away, but it could get worse. Finding out early on what’s going on with an employee who is absent can make a significant difference to your relationship with them and to their absence levels in the future. Talking to them allows you to get to the root of the problem and to provide them with the support that they need. By focusing on the absence it may also deter casual absenteeism – too many days off here and there.

Dealing with Short Term Absence

You should have a procedure in place that requires your employees to talk to a named person, rather than leaving a message, when reporting their absence. There should also be guidance on how soon after the start of the working day an employee should contact that named person, if they are too ill to come into work. A standard form should then be completed recording the date, time, reason given and predicted time of absence, to make sure the relevant facts are gathered consistently for each absence. If an employee does not turn up for work and does not report in sick, you should contact them by phone as soon as you can, to find out where they are.

Discussing the problem is essential; especially if one of your employees keeps taking days off for sickness. Maybe there is a work issue which you can help them deal with and solve. Providing the support they need will result in an improved working relationship, better morale and less time off sick.

You should always speak to the member of staff when they return to work, irrespective of how long they’ve been away. It shows you’re taking the situation seriously and acts as a deterrent for people who shouldn’t really be taking time off. Asking how someone is feeling after they’ve been off for even one day also shows that you care about them. Keep the conversation informal but take it seriously. Ensure confidentiality, have a clear structure, record what is said and above all, remain positive and supportive. You can ask them if they visited their GP, how they are feeling now and if there anything you can do to support them. Just remember not to ask any intrusive medical questions!

Communicating with your employees improves productivity and decreases absence, so follow these simple guidelines when dealing with short term sick leave.

There is plenty more advice on the Acas website, with guidance as to what to do when any of your employees take time off for being ill this winter. You can find the information here.

Are You Up To Date with What You Can Ask an Employee?

Book you place on our next Employment Law Update workshop.

There are certain questions that you cannot ask an employee who has been off sick. What’s more, what you can ask and the rules on how to handle the situation change from time to time, as changes are made to Employment Law. You can search the internet and HR publications for news on all the latest changes, which will be happening on 1 April 2017, but do you really have the time?

Twice a year we run interactive workshops that bring you details of all the changes to the law that you need to know about. We do the research so that you don’t have to! Our next workshop will be from 10am – 1pm on 30 March 2017 at Hennerton Golf Club in Wargrave, Berkshire. Before the event we will do the digging to find out about all the important legal changes that might affect your business and your employees. Then we deliver them to you in simple sections throughout the workshop, helping you to understand what you need to do about particular changes.

The workshop costs just £20 +VAT, to include plenty of tea and coffee to keep you going through the morning. You can ask any questions you have in total confidentiality and talk to the other participants about how they will be handling the next round of changes.

Click here to reserve your place now.

Managing the Malingerer

Managing sickness absence is always difficult and dealing with someone who you suspect is not genuinely ill has always been trickier. You might have seen it happen and had your suspicions, but how to you prove that the sickness was not genuine? It’s not easy, so here are some suggestions to help you.

Step 1: Identify and assess potential evidence

The first step is to identify and record available evidence to support your suspicions.

If you have evidence that one of your employees is being dishonest by claiming to be off sick when he or she is not, you may be able to discipline them or even dismiss them for misconduct.

Mere suspicions and rumours will not be enough to show misconduct. However, social media has the potential to provide a good source of possible evidence. If you are presented with evidence from social media, perhaps from another employee, you can use it in the same way as you would any other anecdotal evidence or an employee tip-off.

The credibility of the evidence retrieved from social media will need to be tested in the usual way. Has the information been taken out of context and are the dates of posting accurate?

There is debate over whether social media posts are in the public domain or private, in which case, your employee could argue that this breaches their right to privacy. However, interference with the right to privacy can be objectively justified and might be permissible if you have reasonable grounds to believe that your employee is fraudulently claiming sick pay.

In general, as an employer, you should be able to rely on such evidence, but each case would need to be assessed on its own merits and ‘fishing’ exercises are never advisable.

Step 2: Review the evidence

If your evidence of malingering looks robust and credible then you should be able to start a disciplinary process for misconduct.

A lack of evidence of dishonesty does not mean that you cannot challenge an employee you suspect is not really as ill as they claim. People will often continue to take unwarranted time off where they believe their absences are passing unnoticed.

You can address this by ensuring that return-to-work interviews are carried out following each occasion of absence and encourage your line managers to probe further (or push for medical evidence) if faced with evasive or inadequate answers.

Step 3: Give evidence of misconduct

If you believe you have evidence of dishonest behaviour, it is important not to jump to conclusions. Remember that employees do not have to be bed-bound, or even at home, in order to be unfit for work.

An employee posting pictures of himself on holiday or doing sport or other leisure activities may still be genuinely unwell. Many health conditions do not improve as a result of lying in bed. It is still important to carry out an investigation, as you would for any other allegation of misconduct.

How do you spot malingerers?

Some of the signs include patterns of absence, such as the same day each week; triggers for absence, such as being invited to a disciplinary meeting; reluctance to provide medical evidence or attend appointments; posts on social media; tip-offs from colleagues and reports of activities that seem inconsistent with ill-health, such as undertaking other work or going on holiday.

Step 4: Remember to follow your procedures

Before disciplining or dismissing the malingering employee for misconduct, you must follow your own procedures and the Acas ‘Code on discipline and grievance’, as you would do in any other disciplinary scenario.

You will need to put the evidence to the individual, hear their explanation and consider if that explanation requires further investigation and medical evidence may be needed.

You must also consider the individual circumstances of the case and any mitigating points, such as length of service and previous disciplinary history, as well as how similar cases have been dealt with in the past.

Make sure you follow this process any time you are unsure of how ill an employee really is. If in doubt about how to handle such a situation, contact us by calling 0118 940 3032 or clicking here to email us and we’ll help you through it.

How Do You Handle Unauthorised Absence from Work?

What do you do when one of your members of staff keeping missing work for no apparent reason, or doesn’t come back when you expected them to after their holiday? This is known as unauthorised absence and needs to be handled quickly and efficiently.

The first thing to do is find out why someone has been missing work. Is it unusual or do they keep missing work? Next you need to get in touch with them and follow a procedure. This short video will tell you more about this.

We can help you put a procedure in place for handling these issues and can provide you with a template letter to send to staff who have been absent without your authorization. Just call us 0118 940 3032 or email sueferguson@optionshr.co.uk for some confidential advice.

How Do You Handle Short Term Staff Sickness?

Do you have a member of staff who always seems to be off sick, or who doesn’t turn up at work as often as they should do? What’s the best way to handle this?

The first thing you need to do is find out exactly how many days your employee has been off work due to illness and why. What next? Watch this video to find out how to meet to with your employee and what you expect from them next.

If you have any specific questions about handling short term sickness issues with your team, call us 0118 940 3032 or email sueferguson@optionshr.co.uk for some confidential advice.

How Do You Handle Unauthorised Absence?

Occasionally you might find yourself faced with a situation where one of your employees is absent from work without explanation and without permission. They simply fail to turn up for work. The absence might be for just a day or two or – in the worst case – you might never see them again. What can you do about it? How should you handle unauthorised absence?

Contacting your Employee

The starting point is for you to try to make contact with you employee by telephone on the first day of unauthorised absence, to find out why they have failed to turn up for work. Logs of all attempts at contact should be kept, whether these are messages left on an answer phone or with relatives or flat mates, or whether there has simply been no answer when the employee’s telephone number is rung. Remember to call landlines as well as mobile numbers, if you have them.

If your attempts to contact your employee are unsuccessful, it is recommended that you contact the employee’s stated emergency contacts – usually parents or siblings, spouse/civil partner or partner.

If nothing has been heard from the employee by the second day of unauthorised absence, you should step up your attempts at contact, by writing to advise the employee that they have failed to attend work on the relevant dates and have not provided any reason for non-attendance. You should cite the previous attempts to contact the employee in your letter, and ask the employee to make contact with you by a set date, to confirm their position. Allowing a couple of days for contact should be sufficient. The employee should also be advised that unauthorised absence without good cause is a serious disciplinary offence, which may, depending on the circumstances, amount to potential gross misconduct.

Assumed Resignations

Some employers state in their letter that the employee’s conduct in failing to attend work implies that they intend to, or have, resigned; if they fail to make contact by the stated deadline, it can be assumed that this is the case and appropriate action can be taken. Do note, however, that for a resignation to be implied by conduct, at the very least you must make enquiries and warn your employee of your intentions.

It is only in exceptional circumstances that resignation will be the proper inference to draw from an employee’s conduct. In most cases, the contract of employment does not end until you accept the employee’s breach of contract in failing to attend work, by actually dismissing them. This is because tribunals will generally hold that the withdrawal of labour and the failure to contact the employer are not of themselves enough for a resignation. Rather, the employee must have actually communicated an intention to resign to the employer.

Given that it is likely that a tribunal will hold that an assumed resignation is in fact a dismissal, as the employer, you should incorporate your normal disciplinary procedure into this process. This will involve writing to the employee to invite them to a meeting to discuss the unauthorised absence, setting out the possible consequences of this behaviour. Of course, if the employee has failed to reply to the unauthorised absence letters, it is highly likely that they will fail to turn up for the disciplinary meeting and will not provide any reason as to why they could not attend. This means that the meeting will probably go ahead in the employee’s absence and that they will then be notified of the outcome in writing and given a right of appeal.

Disciplinary Action

In many cases, you’ll be able to make contact with your employee and they return to work. When this happens, you should promptly investigate and ask the employee for a proper explanation at a return to work interview. If there are no acceptable reasons for the absence, the matter should be treated as a conduct issue and dealt with in accordance with your disciplinary procedure. Even if the employee says that they were sick, they will need to explain why no contact was made with you, as required by your company sickness absence reporting procedure. An investigation might well turn up the fact that the sickness absence was not genuine, and there may still be a disciplinary case to answer.

Unauthorised leave can lead to a fair dismissal, especially where a prior warning makes the consequences of the absence quite clear and the absence is for longer than a day or so.

Unauthorised Holidays

You may become aware in advance that an employee plans to take unauthorised holiday. This is most often connected with holiday requests that you legitimately turn down, but when the employee tells you that they are taking the time off anyway, because a holiday or flight has already been booked.

Where an employee has a holiday request turned down, you should write to them confirming the legal position. Even if you choose not to do this for all declined holiday requests, as a minimum, you should do it if you subsequently find out that an employee plans to take the time off work anyway. The employee may tell you this directly – often in a fit of temper – or you may hear it from another member of staff.

The letter to the employee should state that their holiday request for the relevant dates was declined and set out the reasons why. It should go on to say that, if the employee does still take the time off, not only will they not be paid for it but it will also constitute unauthorised absence. The letter should make it clear that unauthorised absence is a very serious disciplinary offence amounting to potential gross misconduct and that the employee will be at risk of summary dismissal on return from the holiday. You should finish by inviting the employee to reconsider their position in light of the possible consequences.

If the employee ignores the letter and goes on holiday, on their return you should invite them to a formal disciplinary hearing to discuss the matter. Don’t try to hold this meeting in the employee’s absence, given that you already know that they would be unable to attend. Instead, suspend the employee on the day that they return and set up the disciplinary hearing for a few days later. Assuming that a fair disciplinary procedure is followed and that you had legitimate reasons for turning down the employee’s annual leave request, a dismissal on these grounds is likely to be fair.

As with all disciplinary and dismissal issues, make sure that you have a proper process in place and that you follow it to the letter. If you don’t have a procedure for dealing with unauthorised absence or any other staff issues, get in touch and we’ll talk about how we can help you set up the processes that you need.

If you have any questions about how to handle unauthorised absence, contact me straight away by calling 0118 940 3032 or by clicking here to email me.

Are Your Employees Fit for Work?

The Department for Work & Pensions has finally launched its service for employers, employees and GPs, to help employees who have been sick for four weeks or more to return to work.

It has been designed to reduce sick pay costs for employers by facilitating a quicker return to work and by providing an occupational health service to small businesses with limited access to this type of resource.

As an employer you can access web and telephone advice about any work related health matters affecting you and your employees by visiting www.FitForWork.org or by calling 0800 032 6235.

It is not mandatory to use the service but you should now consider updating your sickness absence policies to reflect the availability of Fit for Work. You should make sure your managers know about the resources offered and that they may be contacted by the service concerning an employee referred to them. They also need to understand how to deal with a Return to Work Plan from Fit for Work and the fact that this plan removes the need for a fit note while it remains current.

You can refer an employee to Fit for Work if:

  • They are still employed by you
  • They have been absent for four weeks or more
  • They have not been referred for an assessment within the last 12 months
  • They have provided consent to be referred and
  • They have not already been referred to the service by their GP.

Fit for Work offers:

  • Advice by telephone and online, including information on adjustments at work or general work related health advice
  • Referral for an occupational health assessment. Employees referred will be contacted within two days of the referral and a telephone assessment completed. In some cases a face to face assessment may be deemed necessary
  • A Return to Work Plan. This will be provided to the employer by email and the employer should then consider whether it can act on the recommendations.

Fit for Work may contact you to gain an understanding of your specific workplace, when recommendations in the Return to Work Plan have not been actioned, or in cases where the relationship between you and your employee are identified as one of the obstacles to a return to work.

Employees will be discharged from Fit for Work when they have returned to work (including on a phased return basis) or when the Fit for Work service can no longer provide assistance or if a return to work has not been possible after three months.

Find out more at www.FitForWork.org or call 0800 032 6235.

Can Santa Get the Sack?

Santa

Can Santa get the sack?

Christmas is coming, the goose is getting fat … but so is Santa! He’s now too big to fit down the chimney; the elves think they have man flu; and Rudolf says the roads are blocked with snow so he can’t get to work!

You might think that Christmas runs smoothly at the North Pole – after all, they have all year to plan it. However, this year there are a few problems for the Head Reindeer (HR) department to sort out.

Father Christmas is too big to fit down the chimney. All year Santa has been relaxing at the North Pole and as a result, his girth has expanded somewhat. The Head Reindeer is worried that he won’t be able to do his job properly – after all, he is supposed to climb down chimneys in order to deliver presents. Can he get the sack for not being able to carry out the work in his job description? If Santa is morbidly obese and can’t carry out his daily tasks, he could be classed as disabled. This means that sacking him because of his girth may be discrimination – something the Head Reindeer would like to avoid!

The elves think they have ‘man flu’. They’re sneezing and coughing and their noses are running, so they’re really like to stay in bed – especially during December when work gets really busy. Are they allowed to take time off sick, when Father Christmas thinks they just have colds? Staff taking time off for sickness usually increases over the winter months, so the Head Reindeer will need to speak to each of the elves and find out what’s actually wrong with them and make sure they have the right evidence to support the reasons for their absence. Keeping in contact with sick staff is always a good idea. After all, how can Christmas carry on without the elves?

Rudolf says the roads are blocked with snow. He says he can’t get to the office because of the weather conditions. He can’t really work from home, although for some staff, it’s worth setting up remote access, so that they can still work, even if they’re not in the office. The Head Reindeer needs to make sure that the Staff Handbook is up to date, to cover issues like bad weather. And he needs to find out how else to get Rudolf to work, if there is snow on the road, or Christmas might have to be cancelled.

With a little bit of forward planning (and perhaps some advice from an expert) the Head Reindeer (HR) manager will be able to make sure that everything goes to plan for a great Christmas. At least he can let all the elves take time off together, once the festive period is over!

How Do You Manage Absence in Your Business?

How Do You Manage Absence in Your Business?

The cost of absence to your business could be huge. While it’s not always avoidable, you can reduce the cost and impact by managing it effectively. Here are some of the things you need to do:

Monitor it: You won’t have an idea of the problem if you don’t keep a record of the days and dates of absence. You need to know the frequency or length of absence to decide on the next steps.

Reporting absence: You must have rules about reporting absence and you must make sure these are followed.  If you don’t do this everyone will ignore them because they can.

Discuss the problem with your employee: There’s a legal requirement to consult with employees. They need your support and you need to know how to plan their work while they are away and make arrangements for their return.

Getting the payments right: Check the contract of employment to make sure you make the correct payments. As a minimum, employees are entitled to Statutory Sick Pay and they may also be entitled to be paid for holidays.

Return to work interview: These are key tool in deterring absence and making sure that you know what’s going on with your staff. They’re a great opportunity to nip problems in the bud.

Keeping in touch: Contact is vital if an employee is away for a long period. It helps you to provide support to them and at the same time understand how the situation may develop so that you can plan your business.

Phased return to work: This may be required after a long illness and may be suggested by the GP in a fit note.  You should consider these suggestions and discuss them with the employee before you make a decision.

What if you need to dismiss a member of staff due to long term absence? What are the benefits of managing absence? You can find out more from our free fact sheet – download it here.