Here are another couple of questions that were raised in our recent webinar on Managing Sickness Absence, plus our outline answers.
If an employee always uses their full sickness allowance but never goes over this, can we still have meetings and issue warnings, even if there is no evidence of an underlying medical condition?
Yes, absolutely. In fact, this is exactly the situation where you should be actively addressing and managing their attendance.
Ideally, your sickness procedure should include “triggers” that prompt a review (and usually a warning) after a certain number of absences. This should be the case even if (and in fact, especially if) the employee does not have any underlying medical condition, e.g. the reasons for the absences are different and totally unrelated. Remember, the purpose of the warnings is not to “discipline” the employee, but to ensure they are aware of the standards of attendance that are expected and to support them in meeting them.
A few additional points to consider. Do you currently carry out return to work meetings after an employee has taken a period of absence? Studies have shown that conducting return to work meetings after every period of sickness absence can be a powerful tool in managing short-term absence. This is because employees are much less likely to “throw a sickie” if they must then attend a meeting with their manager or a member of the HR team to explain the reasons for their absence. Such meetings also give employers the opportunity to flag up any patterns of sickness absence, which can in itself prompt the employee to improve their attendance.
There is also an education piece here. You use the phrase “sickness allowance”, which suggests that some of your employees see your sick pay provisions as effectively additional leave they are entitled to take each year, and consequently that they may not be always genuinely sick when they take “sickness absence”. Genuine sickness absence is rarely so considerate as to last exactly the duration of your sick pay provision, any more than to fall mostly before and after long weekends or other holidays. It is important that an employee reporting suspicious patterns of absence is made aware that they are being watched – without hard evidence of abuse of the sickness rules, that allegation is hard to make but even just knowing that you may have been “pinged” by your employer will focus the mind quite materially.
This is even more reason for proactively handling short-term absences to ensure you are sending out the right message to the rest of your workforce, namely that good attendance is important and poor attendance will be managed. If other employees spot such “convenient” patterns of absence going unaddressed, they may also see this as an invitation to use up their own annual “sickness allowance”, which could cause even bigger issues for the business.
Clearly, if the employee in question is not genuinely sick then this becomes a conduct rather than a capability issue, but as this can be tricky to prove, advice should always be taken before going down this route.
If an employee is on a permanent health insurance scheme, do they continue to accrue annual leave and are they entitled to a payment in lieu of leave at the end of each holiday year?
Many PHI schemes require employees to remain in employment to be eligible for cover. In which case, as they are “workers” for Working Time Regulations 1998 (WTR) purposes, they continue to accrue statutory annual leave while in receipt of PHI. This is because case law has established that a worker’s entitlement to statutory holiday is based on their status as a worker and not on their actually doing any work. This does not however mean they are entitled to a payment in lieu of leave at the end of each holiday year, as the WTR prohibit payments in lieu of holiday, except on termination.
If an employee seeks to take holiday whilst on PHI, how should their holiday pay be calculated? Similarly, how should their holiday pay be calculated if their employment comes to an end? The position here is unclear but in the case of Souter v Royal College of Nursing Scotland (2010) a Scottish Employment Tribunal held that when an employee goes on PHI their contract of employment is deemed varied such that their “normal remuneration” for statutory holiday pay purposes is their “PHI pay” and not their normal full pay. In other words, employers are not obliged to “top up” an employee’s benefits under the PHI scheme to reflect their original salary entitlement. As to how far back that accrual goes, the WTR now provide that any Regulation 13 leave (the basic four weeks’ statutory leave) not taken 18 months after the end of the year in which it was accrued can be treated as forfeited.
If the employee is off sick unpaid long enough to benefit from a PHI scheme, then they may choose to treat a certain period as holiday in order to be paid for that time. In those circumstances the employer will need to suppress the grinding of teeth which comes with the request to be paid for a period of rest and respite from work the employee hasn’t done, and agree.
If you missed any of our previous posts on this series, they are available to read here:
