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‘Tis the winter sickness season – when is someone Fit to Work?

Medico Legal

The Christmas festivities are over, and as the dark days of winter are stretching out ahead of us, GP Surgeries in the UK are expecting a surge in patients over the Winter months. The NHS is also bracing itself for one of the worst Flu outbreaks in its history. This is also not good news for employers, who may see their workforce hit by illness and unable to work or worse still, feigning a bug to get a day off work.

Managing absence can be a minefield, and employers need to be clear in their approach, and consistent with all staff. So, how do you know when someone is fit for work? Or whether they are just pulling a sickie? Read on to understand how employers can manage absence effectively, and the steps they can take to get employees back to work.

Assessing absence

You should have a policy in place for staff to notify their manager formally if they are too unwell to attend work that day. We recommend that your policy includes the requirement for the employee to phone their manager or HR, and prohibit emailing or texting. A phone call enables the employer to more clearly understand the nature of the sickness, and how long it is expected to last. It also means you can discuss any work scheduled for that day that may need to be handed over to another member of staff. If the employee fails to call you by the start of their working hours, it becomes an unauthorised absence.

During, or after the, call, you should also consider if the reason for absence is genuine:

• Does the employee often call in sick?

• Is there a pattern to when the employee calls in?

We would recommend carrying out a Return to Work meeting after any absence, regardless of the length of time off. These meetings are designed to ensure that you are satisfied with the reason for the absence, and to bring the employee up to speed on any work they may have missed. They are also effective in reducing the number of non-genuine shortterm absences.

If you suspect an employee is falsely claiming or exaggerating an illness you should investigate and gather evidence as proof. This may involve reviewing their self-certification form, or their fit for work note. You may also want to seek their consent for obtaining a medical report from their GP.

Your absence policy or employment contract should also clearly state what your arrangements are regarding Sick Pay. Many employers may use their discretion and continue to pay staff at their usual rate, if they are off for a day or two. Others will not pay for the first three days’ sick leave, as is permitted by the Statutory Sick Pay legislation. It is critical you are consistent in what you do.

What to do with AWOL staff?

If your employee fails to notify you of their absence from work, you should first try to make reasonable efforts to contact them. You may also want to consider whether to get in touch with the employee’s emergency contact if you have these details. There may be a justifiable reason to explain the absence, like an accident on the way to work.

If you make contact with the employee, or they return to work, you will need to determine whether you consider the absence as unauthorised and potentially follow up with a disciplinary hearing. You should follow the disciplinary procedure documented in your Employee Handbook.

Returning to work after a long-term absence

If an employee has been off on long term sick leave, a review meeting will help you both determine their fitness to work and whether a phased return to work is the best approach. You may want to consider getting an independent assessment to help you establish the employee’s fitness to work. Other considerations include:

• Understanding whether the illness was caused by workplace factors e.g. stress or bullying, or an accident at work

• Whether absence is related to a disability (as defined under the Equality Act 2010), which may recur

• Whether the employee is capable of returning in the same capacity as their original role

• Is it safe for the employee to return – both for them, and for other members of staff?

You are required to consider and make reasonable adjustments if a disability is involved. However, you may also agree to take certain steps to support the eturn to work regardless – these can include:

• reduced hours, or varied start & finish times

• alteration of duties

• relocating an employee’s workstation

• purchasing specialist equipment it is worth implementing these steps for a trial period, with regular review meetings to assess their effectiveness

What does “Fit for Work” actually mean?

You may be familiar with terms such as ‘doctors note’ or ‘sick note’, but these were replaced by “fit notes” in 2010. A fit note can be provided, free of charge, to the employee by their GP after the first 7 days of illness. The fit note was intended to operate as a tool to help employees return to work, with the doctor assessing whether the health of the employee affects their fitness to work and identifying if they could return subject to some changes. Therefore, the GP should consider if the employee is either:

• Not fit for work

• Fit for work subject to certain possible adjustments

If you are unable to fulfil the adjustments recommended by the GP, then the fit note must be treated as though it is advising the employee is “unfit for work”.

An employee may decide they feel able to return to work before their fit note states. If the fit note states they are unfit to work then you would need to establish that they are covered by your Employer Liability Insurance if they return to work early. You are not obliged to agree to an employee returning early to work, especially if you are unable to make the adjustments in time to facilitate an early return.

Unfortunately, the aim of the Fit Note has not been fulfilled and in a further attempt to improve attendance at work the Government introduced another scheme – also helpfully named “Fit for Work”. This allowed GP’s and employers to refer staff for occupational health assessments if they were off work for more than four weeks. An announcement in December 2017 has been made though that the scheme is to be scrapped following its low take up. In its place will be a revised Government strategy aimed at getting more disabled people into work. Watch this space to find out what shape this will take.

Disability and being ‘Fit for Work’

Workers with a disability have the right not be discriminated against by employers – these rights are enshrined in law by the Equality Act 2010. As an employer, you must consider and make reasonable adjustments to ensure that workers with disabilities are not disadvantaged when doing their jobs. It’s always worth noting that what is “reasonable” depends on each scenario, and factors like the size and financial resources of the employer are very relevant. Many of the reasonable adjustments already discussed can be made to provide support to a disabled employee to enable them to remain in work. But just how do you determine whether an employee with a disability is “Fit for Work”?

Start with a discussion with the employee – understand what their disability is, and the impact it has on them. There may be obvious adjustments that you can make that you can agree with the employee. For more complex cases, you may want the support of specialist medical advice – from GP’s, Occupational Health Specialists, Optometrists or similar. Our HR Medical Specialists are experts in supporting employers through the absence management process and can provide specific tailored advice for each case to help facilitate the return to work. Working in partnership with these services, and the employee, will allow you to determine how much of their role they are able to do.

Cold and Flu season aside, determining whether someone is Fit for Work can be a complicated matter for employers. However, there are simple steps that you can take to help make the process clear and simple. Start with an absence policy that is communicated to all staff, and enforced consistently at all levels. You should also monitor absence levels to identify the early warning signs that you may have a problem. An employee management platform such as Breathe HR, which we have successfully implemented with many of our clients, provides the tools to be able to track absence easily, and highlights any areas for concern before they become a problem. Open and honest conversations around absence and returning to work will help minimise the abuse of your policies.

If you do have concerns about whether an employee is Fit for Work, don’t be afraid to seek professional advice. Every illness and every business is different, and what is reasonable for one business will not be reasonable for another. If you’re in any doubt about your responsibilities as an employer, then a specialist employment lawyer can provide the advice and guidance you need to manage your employees effectively, and avoid the cost and risk of claims later down the line.

Pam Loch, has specialised in employment law since being a trainee solicitor. Pam originally qualified as a Scottish solicitor and became dualqualified when she moved to a firm in England.

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