Hello and welcome to this risk management programme on managing persistent short term absence – an area which, if managed properly, can have real cost savings benefits for a business and it is an area where HR can make a real impact. The latest CBI figures show an average number of days lost per employee per year is 10 in the public sector and close to 6 in the private sector. The cost to businesses runs into billions of pounds.
In this programme we will take a look at implementing absence management procedures effectively and you will get the chance to watch a line manager conduct a formal meeting with an employee whose absence has become an issue. We will take a look at that as well as some of the problems you can run into if you tackle the problem and get it wrong – dealing with unfair dismissal and discrimination claims in particular.
But we start with an issue which is central to achieving any degree of success in this area and that is getting your managers to understand the need to take action. HR managers tell us most of the line managers they come across tend to ignore short term absence and take on a mind-set where they believe there is nothing they can, or should, be doing. The attitude is very much that if staff do not turn in for work then they must be ill and that is a private matter. The view is, very often, if the illness is genuine then it would be quite wrong to challenge it:
Leah de Vries: “It’s not really a question of challenging whether the employee’s illness is genuine. It is about understanding that even in circumstances where the employee is absent for genuine medical reasons where they are genuinely ill and where that's accepted there is still steps that the business can and arguably should be taking to manage that type of absence. From an HR perspective getting managers to understand that is an important point and ensuring that they are incentivised properly to address these sorts of issues and to address them promptly is a real challenge. I think tying it into their own performance management standards and making sure that at their appraisals and their assessments their responsibility to manage absence and attendance within their team or their department is clearly identified is really important."
So, given the importance of line managers understanding that it is their responsibility to manage absence we suggest that you take steps to tie it in with the manager’s own performance targets. If you really want to improve absence levels in your business you need to make managers personally accountable. If they are not managing absence they are not doing their job. Where HR can help is in making sure that the performance management procedures of the business accurately reflect the scope of a line manager’s responsibilities – so absence management is on the radar and will be up for discussion at the line manager’s appraisal. That said, it remains a very tricky area:
Leah de Vries: “I think managers are uncomfortable speaking to employees about their health related absence for two reasons. One because they perhaps don't understand that they can, that they have a right to and that the business will support them in taking action in circumstances where somebody is quite genuinely absence for health related reasons and partly because its awkward and uncomfortable and unpleasant – you are talking to people about something which is very private. We are all very conscious of people's individual rights to keep these sorts of things private and not be forced to share them either with their direct line manager or with the business at large. We've all got kicking around in our heads this idea of employees having to give specific consent if we were to share the information or record the information or process the information so I think its difficult for managers to understand where the lines are and where their responsibilities and rights are in terms of discussing these quite difficult and contentious issues with employees."
Simon Horsfield: "It's an all too sorry tale, isn't it that the individual is informed of a disciplinary matter and they immediately play the sickness card citing stress and believe that they are untouchable and in our experience a lot of HR professionals believe that the employee is untouchable in those circumstances and that nothing can happen until the GP signs them back as fit to return to work. Of course then you find yourself in this catch 22 situation where the thing that is stopping the employee recovering from their stress is the fact that they have got this disciplinary matter hanging over their head. So actually often it is the thing that needs to happen, it is the catalyst that is needed to get them back to work and for that reason we do say do not just abandon the disciplinary procedure, it is appropriate in many circumstances to continue to go ahead with the hearing but just be flexible in the way that the hearing is arranged so the first thing you might want to consider is the time of day when you list that hearing, the venue – for example it might be suitable to do it in a neutral venue, a room in a hotel, or maybe even at the employee's home. In those circumstances clearly it should not be just one manager going into the employee's home, we recommend that HR accompany them there. In those circumstances it can be possible to get the hearing to take place quicker than might otherwise be the case if you are waiting for the employee to return to work. During the hearing itself there may well be a requirement to make adjustments. I am thinking here of things like breaks, regular breaks for people who are suffering from stress for example. I am also thinking in terms of when the managers are making their judgement maybe they just have to make allowances for the fact that if someone is suffering from a mental impairment then their evidence might be slightly inhibited, their recollection of events might not be as clear as it would be at other times and so judgements on credibility and so on have to be slightly measured to take into account the fact that you are dealing with a mentally impaired person."
Ed Goodwyn: “Where you have employees who go off sick with stress related illness then employers have to deal with it. The reality of the situation is that you have busy GPs who will give a sick note when in fact the employee may or may not actually be sick. So what do you do? Well, you could march on but to do so would be very dangerous. It will commonly be the case that the employee is truly ill – perhaps a stress related illness because of the disciplinary that is pending. So, you need to postpone. The issue for employer really is what do you do going forward? How can you make sure that this is not a continuing series of postponements that effectively allows the employee to take the management of the disciplinary away from the employer? The watch word here is “close management”. The employee needs to know that you are keeping a close eye on him or her and you need to closely manage the illness going forward. If there is any prospect of it persisting then our advice is to make sure that you get some medical advice either from the employee’s own GP or you should get the employee to see your own nominated doctor to get your own medical report and take it from there.”
At the very heart of your plans to manage absence successfully you need a system that records individuals’ absence, the amount of time they have off sick and the reasons for the absence. In our experience, most large employers have these systems in place – some more sophisticated than others – so the ability to gather the relevant information is there – but it all goes wrong at the inputting stage. Absence measurement and monitoring depends on employees and line managers feeding the information into the system (that might be through HR in some cases) and then line managers accessing that information and using it to manage problems as they arise. The failure to do that properly is the root cause of most of the problems in this area. Does it really matter form a legal point of view? It is risky to do it badly or not at all? Yes absolutely. You need to have records of employee absence and those records need to be accurate.
Linda Jones: “It is very important to make sure you keep accurate records of employee absence for a number of reasons. The first and most obvious reason is that if you are going to start taking an active approach to absence management with your workforce then you need to make sure that the records of their absence are absolutely accurate because when you invite them to a meeting to discuss those levels of absence you don’t want them to point out that the information you are relying on is incorrect. But there are a number of other reasons. There might be underlying reasons for an employee’s absence relating to, for example, a disability or because the employee is pregnant and if you start to take them through a process then you could find yourself facing a discrimination complaint. Also, you may get to the stage where you want to send the employee to their GP, or a specialist, and at that point you may well want to send the records of the employee’s absence so for that reason they need to be accurate and up to date. Finally, under the Data Protection Act records of an employee’s absence are classed as “sensitive personal data” and if you are going to keep that personal data there is an obligation under the Data Protection Act to make sure that it is accurate.”
EARLY INTERVENTION AND THE RETURN TO WORK DISCUSSION
Leah de Vries: “More than any other area of the law this idea of managers and supervisors nipping this issue in the bud is so important. Its true that any issue like performance management or discipline is best dealt with quickly and promptly but I think in the context of short-term persistent absence letting things fester and letting standards slip and not being clear and robust about what the organisation's expectations and standards are and then going on to apply those consistently can be really, really damaging."
The return to work discussion is certainly one of the most effective tools at your disposal for tackling absence problems early - making sure that your line managers have those face to face interactions with those people who are returning to work. There has been a lot of work done in this area and all the evidence indicates that this stage of your procedures is likely to have the greatest impact.
Ed Goodwyn: “Again, the watch words here are “close management”. Having return to work meetings really does help you, as the employer, keep on top of the issues. The balance here is not so the meeting is in any way oppressive – it is not anywhere near being a disciplinary hearing, nor should it be. But it is a way in which you get the message across to the employee that you as the employer need to manage your workforce and have your own attendance level requirements. The very fact you have these meetings often resolves the issue and the employee's attendance level then gets back to the required level. It also acts as jolly good industrial relations. The employee understands there is management going on, and also it allows the employer to spot at an early stage whether there is some underlying illness that the employee has – and this is very good by way of risk management for any potential DDA claim or personal injury claim. These meetings will give you the red light warning about whether or not you need to take further action."
And if you do need to take further action then our advice is always to look to your informal procedures first. Although every HR manager knows that formal procedures are a last resort, that is especially true when it comes to managing persistent short term absence. The last thing you want is for your employee to go off on long term sick and, once you are into formal procedures the chances of that happening are much higher.
Kirsty Ayre: "One of the most important, and often overlooked tools in managing persistent short term sickness absence is the informal stage. The stage when you start to realise there is an issue with an employee's sickness absence but you don't want, at that stage, to go on to the formal procedure. Many problems can be resolved quickly if they are nipped in the bud at an early stage, and the informal procedure gives you the opportunity to do that. Using the informal stage in the procedure is also an easy sell to line managers because it is much quicker and, in some ways, easier for the line manager to deal with than the formal stage which will involve a significant amount of time and effort. Even though the line manager and HR manager will see the informal stage as being informal it is worth remembering that the employee is likely to see it as being quite formal – and that is, perhaps, not a bad thing because it will help make them realise the importance with which the employer treats absence, and it wll remind the employee of the potential consequences if they do not meet the attendance requirements.”
Taking formal action is your last resort where the persistent intermittent absence remains a problem despite the numerous return to work interviews and informal meetings with the individual. The meeting under the formal procedure should have exactly the same focus as previous meetings, so with the emphasis very much on the impact to the business and the disruption caused by the individual’s absence. The employee will probably go into that meeting feeling they are being punished for being ill. The manager needs to get across the message that it is the impact of that absence that is unacceptable.
Leah de Vries: “If you go into a specific meeting, yes it is important evidence and to show compassion, understanding and sympathy to a certain degree but ultimately the line manager is in control of that meeting and the purpose of the meeting is to make the employee aware that they have breached or are about to breach a particular standard or hit a trigger point in relation to their absence. They need to be made aware of what that standard is, the extent to which they have breached or are about to breach it and the consequences for doing that both to them as an individual in terms of a caution or a warning and ultimately for the team that they are part of and for the wider business implications. The law is very supportive of employers who take measures against employees who are absent to an unacceptable level from work provided that we are clear about the standards that are expected so that those expectations are managed. Employees are warned appropriately and then we robustly and consistently apply those standards across the board."
Let’s turn now to the meeting itself. I’ll demonstrate how I would conduct the meeting if I was the line manager. The employee is Nick Smith and he has a poor attendance record. He has been absent on 10 occasions in the last 12 months and has had a total of 19 days absence. We adopted the informal stage initially, and there was a review period of 2 months during which Nick’s attendance was monitored but there was no improvement. The reasons Nick has given for his absence vary but they are include things like “upset stomach”, “heavy cold”, “headaches” and various other seemingly minor ailments. We are now at the formal stage and Nick was sent a letter inviting him to the meeting with me. Incidentally, the letter Nick received informed him of his right to be accompanied at the meeting. He has chosen not to exercise that right on this occasion. I have not yet decided on whether to issue a formal warning to Nick about his attendance, but it is certainly a strong possibility. Incidentally, I use the word “warning” but many procedures adopt different terminology to distinguish the sanctions imposed under the attendance procedure from the sanctions imposed under a disciplinary procedure. So, your procedure may refer to “cautions” rather than “warnings”, or possibly refer to “attendance improvement letters”, but they are all serving the same purpose.
Finally, I can tell you that going into the meeting I am expecting Nick to want to talk about the reasons why he has been absent. It is understandable that he will want to focus on that. Whilst you always need to be alive to the underlying medical reasons for someone’s absence – not forgetting the Disability Discrimination Act of course – in the majority of cases of persistent short term absence the Act will not come into play. You can, therefore, safely focus on the amount of absence and the impact it is having at work. That is what I’m trying to address in this meeting.
Joe Hello Nick - thank you for coming in – how are you? I trust that you know the purpose of this meeting.
Nick I’m ok thanks. I got your letter – it is about my attendance.
Joe Yes, that’s right. We talked about this before, when I met with you last time informally. We agreed we would review the situation after 3 months and attendance remains a problem I felt it was necessary to go to the next stage and have a formal meeting under the attendance procedure. You should have a copy of the procedure – I think it was sent to you with the letter?
Nick Yes, I’ve got it.
Joe Good. The purpose of this meeting is to discuss the levels of attendance, which still concern me, set out clearly what is expected and give you the opportunity to respond. I sent your attendance record over to you – have you had the chance to look at it? I did get it checked by HR and it is accurate.
Nick Yes. And I don’t dispute the record – but the fact of the matter is that I’ve had a difficult few weeks with one thing and another. I’ve been ill and I can’t help that I’m afraid. You can ask my doctor if you don’t believe me.
Joe I fully sympathise with you Nick, and I don’t doubt for a minute that you have been genuinely unwell. As your manager my job is to manage attendance levels because absence affects the business. You are a valuable member of the team and when you are not around it has an impact on the business. Let’s have a look. It appears you have been absent three times in the last couple of months and 10 occasions in the last 12 months. It is a total of 19 days absence. Just looking at how that translates into an attendance score – it exceeds 300 which is the trigger we set last time.
Nick How do you arrive at 300?
Joe It is just the system we use – HR brought it in a couple of years ago and it is pretty standard in the industry. Absence is recorded not only in terms of the number of day's absence – 19 in your case - but also in terms of the number of occasions. So, it is not just 19 days absence – it is the fact those 19 days amounted to 12 separate spells of absence. That hits the business hard and that is what we are trying to manage. Now, let’s have a look at the reasons. “Upset stomach, heavy cold, headaches.” There doesn’t appear to be any pattern – although Friday’s are the most frequent days of absence.
Nick Yes, I’ve had an unlucky run.
Joe Nothing serious? You’ve seen your GP? No underlying cause?
Nick I’ve had sick notes from the GP a few times. It’s nothing serious – but if you’re not well enough to work you’re not well enough to work.
Joe Of course. And nobody would expect you to come to work if you were not well. But it does have an impact on these figures, as you can see. Can you just take me through the absences since our last meeting – the absences in the last 3 months?
Nick There’s not a lot to say really. I came down with ‘flu at the start of the year – I think it was gastric ‘flu – and it took a long time to shake that off. I probably should have taken more time off to be honest. They all relate to that.
Joe Ok. I’m sorry you’ve had a difficult time health-wise. But hopefully you can see where I’m coming from? Genuine illness is nobody’s fault but it has an impact on the business and that is why we have this procedure.
Nick So what happens next?
Joe Well, what I propose to do is set another review period – another 3 months – after which we can take stock and, hopefully, see an improvement. Meanwhile, I am going to send you an attendance improvement letter. This the first formal letter under this procedure. [Joe refers to the procedure and points it out to Nick]
Nick Seems a bit over the top, Joe.
Joe Not really. That’s the procedure. I can see how it may appear harsh but in fairness this is not a fast track procedure at all. In fact it is quite the opposite - and plenty of time and opportunity to turn things round. You will see from the procedure that there are two further letters before we start thinking about dismissal – but hopefully it won’t come to that.
Joe I just mention it because ultimately that is where we end up and it is only fair that you appreciate that.
Nick I can’t help feeling I’m being treated as if I’ve done something wrong here Joe
Joe I can understand how you feel but it’s purely a matter of facing up to the fact that the business cannot afford to carry the cost of absence at this level. Commercially it doesn’t make sense. If it is any comfort to you we operate this procedure right across the business – it’s nothing personal.
Nick I see.
Joe Can we agree to a review period of 2 months then? And over that period we will look for an improvement. I suggest we aim to get below a score of 300 – if you have no more absence in the next 2 months you will achieve that. I have checked with HR and that is consistent with how we have handled other similar cases.
Nick Yes, ok.
Joe Good. I will send you that letter I mentioned. I’ll also send an email to you later today or tomorrow just setting out what we covered in this meeting and what we have agreed going forward. It is just for record keeping purposes really. Is that ok?
Nick Yes, ok.
Joe Is there anything you would like to add, Nick? Any questions? Anything at all?
Nick No, I don’t think so.
Joe Ok. I should just mention that you will see from the letter, when you get it, that it mentions a right to appeal. Because I’m imposing a sanction – the first letter under the procedure – you have the right to challenge this decision. I hope you don’t feel you need to challenge it but you have the right nonetheless. Procedurally it is something we have to make you aware of.
Joe Ok, thanks Nick.
End of meeting
You’ll notice that I was able to run right through to the end of that meeting without the need to adjourn it. Sometimes it is necessary to adjourn - there are two classic situations. First, if it appears that the reason for the poor attendance has something to do with the impact of the working environment, or the job itself. An adjournment would then be necessary to explore the issues. Secondly, if it is necessary to obtain a medical report, for example from the employee’s GP or a specialist. Following the adjournment, you would carry out your investigations and reconvene the meeting at a later date, making sure you provide the employee with any information you obtained. In this case, however, I was satisfied that neither of those two situations arose.
The sanction I imposed on Nick was a first formal attendance improvement letter. That is the first formal warning stage under the procedure I was following. Your procedure might provide for a verbal warning or caution – they are equivalent stages. In any event, whatever form your procedure takes, it will be necessary to follow up by sending a letter to the employee confirming the sanction and the target for improvement. The letter should also make it clear that the employee’s attendance will be reviewed over a specified period – in this case I suggested it was 2 months . I would also set out in the letter the consequences of attendance not improving – further warnings would be given and then ultimately the employee would be dismissed.
Finally, the right to appeal. Do make sure that your letter provides a right to appeal – that is inherent to any fair procedure and should be standard practice in all cases.