Absence Management
– the Legal Side!
1. Statistics (CBI stats on
2010)
 190 million days lost, £17bn
 Sickness absence increased in 2010,
despite fit notes
 Two-thirds believe fit notes not helped
 6.5 days average (8.1 public sector/5.9
private sector)
 “Sickies” – 30.4m days, £2.7 bn
2. Managing Absence
 Short term persistent
 Long term
 Disability related
 Unauthorised
 The “sickie”
3. Key Foundations
 Rules and procedures
 Absence management (capability) policy
- reporting sickness
- provision of self-certification/fit notes
- return to work interviews
- sick pay provisions
- provision for medical examinations [cont…]
4. Key Foundations (cont)
- rehabilitation and EAPs
- trigger mechanisms, ie. Bradford Factor or
variations
- procedure for handling long term and
disability-related
- consequences for unauthorised
absences/non-genuine absence
5. Managing Short Term
Persistent Absences
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
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Self-certification forms
Return to work interviews
Trigger mechanisms
Bradford factor – measure absenteeism,
tackle short frequent and unplanned
absences – more disruptive
 Warning procedure
[cont ...]
6. Managing Short Term
Persistent Absences (cont)
 International Sports Co Ltd v. Thomson –
dismissal fair as long as fair review of
attendance record, chance to make
representations and forewarned about
dismissal if things do not improve
 Watch out for underlying health condition –
may change reasonableness of warning
process
7. Bradford Factor or Similar
Trigger Mechanisms
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B = (SxS) x D
B = Bradford Score
S = number of instances of absence in set period
D = number of days absence in set period
Eg. one instance of 10 days absence = 10 points / 10
instances of 1 day absences = 1000 points
 Trigger points set at level where employer deems absence
levels unacceptable
 Take care – disability discrimination and need to make
reasonable adjustments, dependant care leave
8. Unauthorised and Sickies
 Unauthorised – failure to follow sickness absence
procedures – unless just reason = conduct issue,
not capability and so adopt disciplinary process
with warning
 Non-genuine illness – difficult, need evidence of
malingering, each case turns on its own facts, may
need to get medical input where allegation of
“exaggeration” – see Pacey v. Caterpillar Logistics
Services (UK) Ltd 2011
9. Long Term Sick – Key
Principles
 Regular contact (ACAS and CIPD) – sympathetic
approach
 Rehabilitation and return to work strategies (CIPD)
 Medical investigation (ACAS and CIPD) –
occupational health, not GPs
 Consider AMRA 1988 – “medical report” defined as
one prepared by medical practitioner who is or has
been responsible for the clinical care of employee
[cont]
10. Long Term Sick – Key
Principles (cont)
 Be clear about sick pay arrangements
(ACAS)
 Consultation (ACAS and CIPD)
 Return to work plans including adjustments
and alternative work (ACAS and CIPD)
 Forewarning that employment is at risk
(ACAS)
11. Fair Dismissal
 “Capability” – fair reason
 Reasonableness
 Adopt key principles of consultation, investigation and
alternatives
 Nature, length and effect of illness
 Cause of illness – RBS v. McAdie 2008 – “irrelevant”
but may need to go extra mile
 Length of service – more tolerance to
hardworking/longer serving employees (Clarke v.
Pickering Kenyon 1993)
[cont…]
12. Fair Dismissal (cont)
 Importance of the job/feasibility of temporary
replacements
 Effect on other employees, output and sales
 Size of organisation and administrative resources
 Health and safety considerations
 Sick pay – arrangements do not indicate the amount
of sickness absence employee entitled to
 Entitlement to permanent health insurance – implied
right not to be dismissed
13. Disabilities
 Equality Act 2010
 Physical or mental, long term and substantial effect
on ability to carry out day to day activities
 Removed need that impairment must affect one or
more specified capacities – easier to satisfy definition
 Long term – 12 months or “likely” to be 12 months
 “Likely” = “could well happen” (SCA Packaging Ltd v.
Boyle 2009)
 NB – includes fluctuating and recurring conditions
[cont…]
14. Disabilities (cont)
 Long term absence dismissals run the risk of
indirect discrimination, discrimination arising from a
disability and a failure to make reasonable
adjustments
 Defence to indirect and discrimination arising from
a disability = objective justification
 Likely that the defence of objective justification will
overlap with obligation to make reasonable
adjustments
15. Disability Discrimination
 Dismissal may be fair but breach of EA 2010
 Separate considerations
 Disability discrimination does not prevent an
employer dismissing an employee absent due
to ill health which is a disability (Royal
Liverpool Children’s NHS Trust v. Dunsby
2006) – just need to justify dismissal [cont …]
16. Disability Discrimination
(cont)
 Detailed consideration of alternatives and
reasonable adjustments – need occupational
health input and consult with employee
 “Adjustment(s)” must be effective to remove
disadvantage
 Sick pay – O’Hanlon v. Commissioners for
HMRC 2007
Taylors Solicitors
Employment Team
Oliver McCann – Elaine Hurn
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX
Tel: 0844 8000 263
www.taylors.com