The Employment Appeal Tribunal (EAT) has recently clarified that where an employee has untaken leave that they have been unable to use because of long term sickness there is to be an 18 month time limit to do so. The 18 months starts from the end of the leave year in which it should have been taken. Workers have been able to carry over four weeks leave if they have been on long term sick as decreed by HMRC v Stringer in 2009 and was linked to the Working Time Regulations 1998. An employee’s contract may, however, provide for additional holiday carry over.
The decision to add the 18 month time frame was linked to Plumb v Duncan Print Group Ltd. The EAT stated the worker doesn’t need to show that they were physically “unable” by reason of sickness to take the holiday during the leave year in which they were off sick. Although employees can take their holiday during a period of sickness some may choose not to.
Background to the Case
Mr Plumb had been on sick leave since April 2010 due to an accident at work. He did not take his annual leave for 2010, 2011 and 2012 leave years. In July 2013 he was asked to take all the annual leave that he had accrued. The employer only paid him his leave for the year in which he requested it ie 2013-14 and refused to pay the leave untaken from 2010, 2011 and 2012 which amounted to 60 days. He remained on sick leave until his termination of employment in February 2014 and put in an employment tribunal claim.
The EAT decided that a worker should not be entitled to have their holiday carried forward indefinitely as defined by the Working Time Directive and EU case law. Therefore workers who have been absent for a number of years will not be entitled to back pay for holiday that they have accrued and not taken.
In any case wherever possible I always advocate employers should deal with long term absence issues to prevent employees being off for months and certainly not years on end.
The incidence of cancer is on the rise. The cost to the UK economy for employees dropping out of of work due to the illness is £5.3bn. Most of us know someone that has been affected by it and it is important to know how to deal with cancer in the workplace. At a recent seminar organised by MacMillan Cancer Support I learnt some useful information which I shall share with you in this blog.
Many employers do not know how to support staff with cancer. 82% of employees with cancer want to work, however, they are 1.4 times more likely to be unemployed. 47% of those with cancer have to give up work or change their roles because of the diagnosis. 47% say that employers don’t discuss sick pay entitlement, flexible working or workplace adjustments which is quite shocking. Cancer is a disability and covered by the Equality Act, yet only 49% of managers know this fact. Only 28% of managers have received training on the legislation. MacMillan Cancer Support provides support online for SMEs to help manage situations.
Employees who are faced with cancer can also face financial difficulties. They risk losing their homes if their income drops. MacMillan provide hardship grants which can help pay utility, heating and phone bills. Last year £90,000 was paid out in grants which can be accessed through the NHS.
The key issues for employers are managing confidentiality, sickness absence, discrimination, capability and ultimately termination.
An employee does not have to share 100% of the information about their condition. If a medical report is produced under the Access to Medical Records Act the employee has the right to change the report and to have it with held from their employer.
Employers must have express consent to disclose any information to colleagues. Where an employee is refusing to allow an employer to divulge any information to anyone, it might be a good idea to try and persuade the employee that a brief explanation might be needed in order to reduce curiosity about the employee’s behaviour or absence.
Employees who go on long term sick due to their condition should be contacted on an agreed basis either by letter or phone. It is important for the employer to keep in touch and not ignore the employee otherwise they could resign and claim for constructive dismissal.
Cancer is a distressing condition and it is important the employers help manage the work related situation as best they can. Training and education for managers and key members of staff is really important.
Sickness absence costs the UK millions each year. Managing sickness absence can be challenging and needs employer commitment to tackling the issue. Here we provide some effective sickness absence management tools which are essential in the battle against sickness absence.
If you don’t measure sickness how do you know you’ve got a problem. Of course if you are a small business with only a handful of employees the effect of one of your employees being sick will be obvious. Apart from the cost there will be lost productivity and possibly low morale on the employees holding the fort. However, if you are a larger business with a lot more employees the effect of sickness absence might not be so clear.
An HR information system can be a huge bonus in measuring sickness absence. Based on the inputted data from sick days reports can be produced for discussion at senior management team meetings. Here problematic members of staff can be highlighted and dealt with appropriately, whether it is regular intermittent absence or long term sickness. The main point to remember is that sickness absence management needs to be dealt with. There should also be a sickness absence procedure in place that gives clear guidelines as to how sickness absence will be dealt with.
Employees who are off sick should be required to phone into their line manager on the first day of sickness within one hour of their shift. They should personally phone in and should not be allowed to text or send an email. If the sickness absence continues the line manager should stay in touch with the employee to monitor progress. The employee should be phoning in on a regular basis or the line manager should phone the employee.
On the employee’s return to work, a return to work interview should be conducted by the line manager to check the employee is ok to return, to discuss what has happened whilst the employee has been off work and to ensure they take responsibility for their attendance at work.
If the employee fails to return to work you should consider getting an occupational health assessment to help you manage the situation. This may mean implementing some work place adjustments to allow the employee to return to work. When they are ready to return to work, you need to agree a return to work place then coordinate that process.
Courtesy David Castillo Dominici/Free Digital Images
Today, the first Monday in February, is traditionally known as National Sickie Day as on this day the greatest number of employees phone in sick. Last year over 350,000 employees did so. With the consistently grey and wet weather that does nothing to lift the spirits many people will feel like having a day off to lengthen their weekend.
Sickness absence in the UK costs employers millions of pounds and needs to be tackled. The costs can include sick pay, salaries, lost overtime, reduced service and lost business.
Many employees are allowed to email or text their bosses that they are not coming into work due to sickness. Sickness absence policies should clearly state that the employee should phone in and speak to their manager within an hour of their shift starting and should not text or email The employee should not be allowed to let someone else phone in for them. The idea behind this, is that if someone is swinging the lead they might feel embarrassed to speak to their manager and tell a lie about their situation. Hopefully they will think twice about calling in sick.
Research done by ELAS last year highlighted a number of odd excuses for sickness absence:
A worker called to say he couldn’t come in because his girlfriend’s sister was having a baby. A follow up call by the employer to verify this revealed that there was no girlfriend (and therefore no sister or baby)
A woman called to say she couldn’t come in because she had been play fighting with her boyfriend and hurt her finger as a result
A worker called to say they couldn’t make it to work that day because their car exhaust has fallen off on the driveway
One man said he only had one pair of work trousers and that they were wet because his mum has washed them, so he couldn’t make it into the office
Another person said they needed new tyres on their car and it would otherwise be illegal for them to drive to work
One person said they couldn’t afford to put petrol in their car to get to work
One person said the weather was too bad to cycle to work while another said they were too tired to cycle to work
One employee took a leave of absence after saying his grandfather had died. The company’s HR manager knew the family and bumped into the grandfather, who was very much alive and well, at the supermarket. The worker was dismissed as a result
It is important to do return to work interviews when the employee comes back. The employer can then check that the employee is ok following their absence and there are no lingering problems. The employer should then discuss any work issues that have occurred whilst the employee has been off sick then clearly make sure they know they have to take responsibility for their attendance.
If the sickness absence problem continues employers should consider taking formal action and use an occupational health advisor support to manage the issue.
“Image courtesy of franky242 / FreeDigitalPhotos.net”
At the weekend I watched a programme on Channel 4 called Don’t Look Down (http://www.channel4.com/programmes/dont-look-down) where the practice of young people climbing such things as very tall cranes without safety wires, known as urban free climinbing, was featured With graphic filming of what it is like to be 100 feet or more in the air, which made me feel physically sick as I do not like heights, clearly the people being filmed were enjoying the thrill and exhilaration.
Apparently the craze started in Russia and has now spread to the UK. Whilst there have yet been no deaths from this bizarre sport in the UK, only time will tell whether they will remain a zero statistic. Of course, whilst this is an extreme sport, many employees take part in other sports which can be dangerous, such as racing, skiing, rugby, horse riding, snowboarding, mountain climbing, all of which carry the risk of something going wrong. These issues lead to the consideration of what stance employers can take if their employees partake in extreme or dangerous sports particularly with the risk of accident, disability or death.
The consequences of an employee being off due to sickness absence after taking part in an extreme or dangerous sport will be the cost to an employer. Depending on the length of sickness absence, the employer will have to pay out SSP or occupational sick pay and possibly recruit a temporary member of staff to cover workload if the absence is to continue for several months. To protect themselves an employer can add a caveat into an employment contract or employee handbook so that if an employee has an accident due to their leisure pursuits the employer is not liable for sick pay. If existing terms and conditions are being changed in this manner it is important to consult and get agreement with the workforce. A policy related to a death in service benefit may also be treated in the same manner.
Employees at risk of not being paid sick pay should they have an accident can take out personal insurance.
Management of any long term sickness problem due to the taking part in extreme sports needs to be handled carefully. Any injuries sustained will be because of the employee’s failure to manage the situation correctly and may not be a capability issue. Therefore the employer may consider the use of the disciplinary procedure for this conduct issue if the employee is unable to return to work. If the employee has become disabled through their sporting activities the employer will need to ensure there is no discrimination
Image courtesy of David Castillo Dominici/ FreeDigitalPhotos.net
The French First Lady Valerie Trierweiler has been in the news for entering hospital with a “coup de bleus” after the announcement of Francois Hollande, the french president’s affair with a french actress. Coup de bleus means a touch of the blues or depression. Whilst it is usually rare for someone to go into hospital for such a condition, it can have a huge impact on those who suffer from the medical condition. Employers need to understand about coping with depression in the workplace.
January is a depressing time of the year anyway after the colourful festivities of Christmas and the New Year, the weather is cold and grey and the shops full of dowdy sale items. 20 January this year was declared to be Blooming Monday as the third Monday in January is declared to be the most depressing day of the year. The long hot summer days certainly do seem far away. To combat the effect workers are being encouraged to wear bright clothes on this day – http://www.blooming-monday.com/
Seasonal affective disorder is a temporary condition linked to the low light levels in and winter (mainly December, January and February) in the UK and is one of a range of disorders related to depression. The symptoms are low mood, lack of interest in life, less activity than normal and sleeping more than usual. It can be treated by sitting in front of a light box, cognitive behaviourial therapy and/or anti depressants. More information http://www.sada.org.uk/.
Another type of depression related condition is bipolar disorder. An employee with this condition can be difficult to manage due to the nature of the condition and I have supported several clients in this area. Bi polar disorder is characterised by fluctuating moods between mania and depression. An employee with the condition can be disruptive, failing to follow instructions and making mistakes.
Anxiety disorders can be manifested by restlessness, fatigue, difficulty in concentrating and excess worrying. Employees will seek constant reassurance about their performance.
It is important to manage depression-related conditions in the workplace as the condition is linked to sickness absence and poor productivity which can impact on the bottom line. Individuals with depression are more likely to lose their jobs due to conduct and capability issues. Statistics show they are more likely to keep changing their jobs.
It is important for employers to keep on top of any depression related condition with an employee. Regular documented meetings to discuss the situation are needed and enlisting the help of a good occupational therapist is vital to manage depression related conditions if they become serious. An occupational health report can help reduce sickness absence and can help support a capability programme. An occupational health advisor is preferable to approaching the employee’s GP for a report as occupational health will be working in your favour whereas the GP will be working in favour of the employee. It is important to try and manage the employee to get them back to working normally. If ultimately dismissal is on the cards a report can be invaluable should an employment tribunal claim be pursued.
In sickness absence management it is important that employers investigate the situation fully which will include gaining access to medical records. In the majority of cases this will be so they can provide support to the employee to enable them to return to work, possibly with reasonable adjustments if they are classed as disabled under the Equality Act. In other cases, it may be to consider ill health termination or disciplinary action if the employee has not been truthful with regards the reasons behind their absence.
The Access to Medical Records Act allows an employer to gain access to those medical records with the full permission of the employee. If an employer has a situation where the employee refuses to comply with such a request, then they must make a decision on their ongoing employment based purely on the information to hand. If an employee has high sickness absence and refuses to allow access to their medical records then a possible outcome could be dismissal.
An employer can use a medical professional to gain a report on the employee’s medical condition and its long term prognosis, to find out whether they are classed as disabled and may need reasonable adjustments for example. Whilst the employee’s GP can be approached, they will be only interested in the best interests of their patient and the information they may provide may be lacking for the employer. An occupational health advisor, on the other hand, will work in the best interests of the employer and provide a well rounded report so the employer can take action.
The employee should provide written consent to a report being produced on their medical condition and agree to a possible medical examination. The process should be open and transparent with the employee fully involved. They have the right to see the report before it is provided to the employer and have 21 days to so. They can amend the report if they do not agree with certain aspects that could be misleading or are incorrect. If the medical professional refuses to amend the report the employee can withdraw consent that the report is provided to the employer or may add their own written explanation to be attached to the report.
We can but hope that this summer turns out to be long, hot and sunny, but with that comes the risk that some employees may want to take advantage of the good weather deciding that work is not their top priority. So what can employers do?
With the long school holidays, one possibility could be allowing homeworking. Although if such a request is because the employee wants to look after their children then an employer would need to assert that appropriate childcare is implemented. Work is the top priority and an employee should not be both working for you and caring for their child at the same time.
An employer could consider a temporary change to working hours so that parents can deal with childcare demands. There is no obligation to respond to such a request and when considering this an employer should adopt a consistent approach to avoid discrimination. There should be a clear arrangement communicated in writing. When considering a request the impact on colleagues should be considered.
Another option could be time off for dependents where employees have the right to take a reasonable amount of time off to deal with unexpected emergencies. The definition of dependants can include children, their spouse/civil partner, parents, and even someone else living in his or her household, but not lodgers. Employees can take time off where it is necessary to provide assistance themselves or arrange for care if their dependants fall ill, give birth or are injured or assaulted. They can also take time off where it is necessary to deal with unexpected breakdown of arrangements for the care of a dependant.
Unpaid parental leave rose to 18 weeks on 8 March 2013 and this could be an option that parents could use.If an employer finds there is a definite increase in sickness absence rates during the summer period perhaps with a Monday/Friday pattern then a return to work interview is recommended taking documented notes which will serve as evidence for a disciplinary hearing if the situation does not improve.If an employee is clearly absent without leave then the disciplinary procedure should be followed.
If an employee falls ill on their holiday then provided they can show proof in the form of a fit note then they should be paid sick pay rather than holiday pay and their statutory holiday entitlement should be re-instated.
Having clear procedures and policies in place is key to managing staff during the summer period as any other time of the year.
The recent media interest in Conservative MP Nadine Dorries who has apparently gone to the Australian jungle to feature in “I’m a celebrity get me out of here” without apparently obtaining parliamentary permission has brought to light the matter of what to do with an employee who has gone AWOL.
Failing to turn up to work can be deemed to be gross misconduct and following the disciplinary procedure is essential whether the employee eventually comes back to work or repeatedly fails to turn up at all.
If the employee has turned up for work an initial conversation or return to work interview will provide investigatory evidence from which should follow a disciplinary meeting to formally give the employee a chance to respond to the allegation of being absent without leave.Without a plausible excuse a suitable warning should be delivered with the right to appeal.
If the employee has not turned up work attempts should be made to get in touch with them to find out the reason for their absence.Any letters should be delivered by recorded delivery. Now Ms Dorries has been evicted from the camp we must wait and see what treatment the government doles out to her.
On 6 April 2010 the fit note replaced the doctor’s sick note that had been in existence for sixty years.It was intended that this new system will enable employees to get back to work more quickly and reduce absence costs, which cost the UK economy 17.3 billion annually.The fit note system focuses on what employees can do rather than what they can’t do focusing on positives rather than negatives.
The fit note, a copy of which can be downloaded from www.direct.gov.uk, has advice options for completion and no need for the employee to return to the GP to be confirmed fit; the fit note merely expires.
The fit note is still required after seven consecutive days sickness and there are obligataions under the Equality Act 2010 so that any advice in that respect could be binding.
The first fit note issued by the GP can last for a maximum period of three months when hopefully the employee will be back at work.However a subsequent fit not can be issued for a longer period eg six months.There is no need for a GP to have a face to face assessment of their patient to issue a fit note, it can be done over the telephone.
The GP’s advice on the fit note is not binding; it is meant to lead to a discussion between employee and employer.If an employee or an employer do not agree with the fit note’s reasonable adjustments due to impracticalities in the workplace either can choose not to accept these and the employee can remain off sick until the expiry of the fit note.
Likewise if an employee wishes to return to work earlier than the fit note states, they may do so provided the employer is in agreement.However, in such cases, employers need to be wary of employees wishing to return to work for financial reasons and not being fully fit.To overcome potential liabilities, employers could implement a risk
assessment, discuss concerns, ask the employee to go back to the GP or use occupational health advice to back up a decision.
The role of the line manager is key in the successful operation of the fit note system.They will need to be proactive and develop a whole new set of skills with clear guidance and training provided by the organisation.Managers need to understand what they have to do.
Organisations need to develop a clear procedure for the fit note process to be incorporated into an existing absence policy.Any changes should be consulted over and clearly communicated to all members of staff.
The procedure should detail obligations for both manager and employee and how the process will work in practice.For example, the requirement for a face to face meeting called in writing to discuss suggested reasonable adjustments, if appropriate, should ideally be necessary.The discussion should include whether the adjustments are
viable, how they will work and how long they will last.
The possible use of occupational health should also be discussed and if appropriate an appointment set up, which would delay a proposed return.Also there might need to be a simple risk assessment to ensure safety on return.The impact on colleagues in relation to the employee’s reasonable adjustments could also be an issue for
discussion. A clear date should be set for the employee to return to work with hours and duties confirmed and any restrictions.
The subject of pay may need to be included particularly where there is no contractual sick pay.The procedure may need to incorporate an enhanced SSP supplement for a phased return to work for example so that it is worthwhile for the employee.Any issue related to this should be discussed with HMRC on 08457 143143.
Likewise if an employee can not be allowed back to work for impracticality reasons, they need to have these clearly explained.
Extra care should be taken with certain types of workers – home workers, shift workers, safety critical employees and those who work at heights for example.
The meeting should be documented and confirmed in writing with a copy for the employee to sign to show agreement to a proposal.To standardise company practice a pro forma for meetings could be created or a check list drawn up to help managers cover the appropriate areas.
The return to work should be monitored on a regular basis to ensure the employee and manager is both happy with the situation.This can be done by weekly 1:1s which are documented and take place until the employee is back to work as previously.
Use occupational health or an independent GP to investigate long term or difficult areas of absence for protection against any possible disability discrimination claims.