By James Cronin, director at Eight Legal 

Unexpected absence due to sickness can cause major disruption in a business. There is rarely a 'spare' person able to step in, and the rest of the team inevitably have to shoulder the additional burden.

A certain level of sickness absence is inevitable, and the employee who valiantly 'struggles on' can be just as disruptive as one who takes a day off. But, what about those employees who just seem to be taking a bit too much, especially if you're worried it may be less than genuine?

Eight Legal says that sometimes, simply letting the employee know that you're aware of the situation, and are monitoring it, can be enough to deliver an improvement. The first thing is to get a policy in place for managing absence, and apply it consistently.

Absence Management Policy

It is beyond the scope of this article to detail an entire absence management policy, but your policy should include:

• Procedure for notifying absence

• Information about certification and 'fit notes'

• Details of any company sick pay policy, and statutory sick pay

• What procedure you have for monitoring absence, including any formal 'trigger points'

• What will happen when an employee returns to work

Monitoring Absence

There are numerous methods recommended for monitoring employee absence, with different 'trigger points' for taking action. In reality, whatever system you choose, it needs to be interpreted on a case by case basis, rather than rigidly applied.

Most systems monitor over a 12 month 'rolling' period, though you can choose to use a shorter period if you prefer.

Monitoring Systems

The simplest methods of monitoring are to record total number of days of sickness absence and/ or number of periods of absence - this allows comparison across the business.

Consider calculating % of normal working days/ hours (the 'lost time rate'), since this accounts for part-time workers.

The Bradford Factor (B) is used to 'weight' frequent, short absences more heavily than a single one-off period of absence. It is calculated by multiplying the total number of days of sickness (D) by the square of the number of separate occasions on which an employee has been absent due to sickness (S).

B = S x S x D

So, three absences of 1 day each would give a score of 3 x 3 x 1 = 9

But a single absence of 3 days scores 1 x 1 x 3 = 3

You can use any of these as the basis for 'trigger' points, when you might want to take action to address recurrent absence.

You should also consider patterns of absence, for example frequently missing Mondays, Fridays or days adjacent to bank Holidays.

Certification & Return to Work

 1. Fit Notes

A Fit Note is required after 7 days of sickness absence (Including non-working days).

If a Fit Note says 'not fit for work', this is straightforward (usually!)

If it says 'may be fit for work' you should discuss with the employee any changes which might facilitate a return to work. If you can't agree on suitable adjustments, they should be treated as 'not fit for work'.

The employee should keep the fit note - take a copy for your records.

 2. Self-certification

We recommend that anyone who has been absent for less than 7 days because of sickness should complete a self-certification form on their return.

 3. Return to Work Interview

Consistent use of return to work interviews (RTWI) has been shown to reduce absence. Try to conduct a RTWI after each absence, as soon as practicable after the employee comes back to work.

As well as being a deterrent to abuse of sickness absence, the interview is an opportunity to discuss any issues which are impacting on the employee's ability to carry out their duties effectively.

Approaching the interview with an open mind and a friendly manner may encourage employees to reveal details, such as if they are being bullied at work or have issues because they are, for example, a carer outside of work.

Company Sick Pay

Do you pay company sick pay in addition to statutory sick pay? Could this be encouraging some individuals to take more time off sick. There are plenty of reliable stories of employees calling up their line manager or HR department to ask 'How many sick days do I have left this year?', as if they see it as an extension to their annual leave entitlement. Consider making company sick pay discretionary, but DO NOT attempt to change your employees' terms and conditions without seeking legal advice.

Disability

There is a common misconception that if someone has a disability, there is nothing you can legally do to manage their absence. This isn't true - you only have to make a reasonable adjustment - but absence due to a potential disability does require very careful management, and you should always seek specific advice if disability might be a factor. You need to have a very good paper trail to show that you have taken all necessary steps.

Key Points

1. Monitor absence rates and patterns e.g. short-term intermittent, long-term

2. Have a clear policy

3. Consider setting a target for reduction in absence rates

4. Use return to work interviews and certification

5. Early intervention can be beneficial to both parties - review meeting +/- medical report

6. Maintain regular contact during periods of absence

7. Be flexible where possible with requests for time off

8. Does the situation warrant disciplinary action or dismissal?

9. Could this be a Disability? If so you may have to make a reasonable adjustment under the Equality Act 2010.

Have any questions or in need of additional advice? Contact us on 01242 57016, email info@eightlegal.com or visit our website at www.eightlegal.com.

The information in this article has been produced as general guidance only, and is not a substitute for specific legal advice on any given situation.

Business expert: Recruitment - beware you don't take on litigation instead

10th October 2018

By Kay Hamblin, director at Eight Legal 

Here at Eight Legal , we have recently seen an upsurge in attempts to bring claims against businesses linked to recruitment and interviewing.

It's possible that at least one of these involves a 'serial litigant', who has applied for a job with the main aim of bringing an action against the business when not selected.

A prospective employee can bring an action in tribunal for discrimination if they can point to possible less favourable treatment because of a protected characteristic under the Equality Act 2010. You need to take this seriously, as, unlike unfair dismissal, anti-discrimination law does not require any qualifying time period to be satisfied before a claim can be made. Similarly, an award for damages for discrimination has no upper limit. Adverse media coverage leading to reputational damage is more likely in this area too.

What are protected characteristics?

• Age

• Disability

• Gender reassignment

• Marriage and civil partnership

• Race

• Religion or belief

• Sex

• Sexual orientation

Refusing to select for interview, or to select for employment after interview, because a candidate has been subjected to a detriment due to any of the above protected characteristics is unlawful. An exception is where you cannot employ a candidate because their disability is so severe that there is no reasonable adjustment that you could make to accommodate their disability.

It is important to remember that the definition of disability includes mental illness as well as physical illness. Depression and severe anxiety that have a substantial and long-term adverse effect on an applicant's ability to carry out normal day-to-day activities of life may amount to a disability.

Interview notes

Interview records are of course most likely to contain personal data and therefore an applicant can make a request to see them. If you still have the interview notes you must disclose them to an applicant who asks for them.

It's worth bearing in mind a few things not to ask, such as questions about childcare or medical conditions, which could lead to claims that you have treated someone less favourably on the basis of their replies. Consider what notes you need make - if it's not written down, you don't have to disclose it. Keep notes brief, factual and as objective as possible. You always have the option of writing up notes onto a standard form, recording the key points which led to your decision but not much more, and destroying the handwritten ones you made during the interview.

How long should I keep records?

You should keep the application form/CV and interview summary form for approximately six months as protection in the event of a discrimination claim. Candidates have three months plus ACAS conciliation time (generally about a month, but can be longer) to bring a claim, so after six months there should be little risk of a claim and you can destroy your records.

Preventing Problems

Your best defence against any claim is to have a job specification based around objective criteria that can be justified as being essential for the position. Even better, make sure staff who recruit and interview are trained in the basics of anti-discrimination law and defensive recruiting. It is a shame we have to be defensive, but we live in increasingly litigious times!

Have any questions or in need of additional advice? Contact us on 01242 57016, email info@eightlegal.com or visit our website at www.eightlegal.com.

Please note, the information in this article is for general guidance only, and is not a substitute for specific legal advice on any issue.

Business expert: The top 10 dos and don'ts of employment contracts

3rd October 2018

By James Cronin, director at Eight Legal 

Once you've spent a great deal of time and effort recruiting a new employee, you need to issue them with a contract that is fair, but that protects your business if things don't work out as planned, or circumstances change.

Here at Eight Legal , we help a lot of businesses who have made life extremely difficult for themselves by using contracts that give their employees all sorts of rights, making it hard for the employer to deal quickly and effectively with problems.

Have a look through our checklist - it's far from exhaustive, but gives a few pointers to what you should include.

Do

• Have a clause allowing you to vary the contract - you will still need to consult with your employees, and the variation must be reasonable, but it's helpful to have an express contractual clause. The stronger the business need for variation the more likely it is that the variation would be deemed reasonable in law. For example, if you were losing customers to a competitor who stayed open late, you might need to extend business hours to remain competitive.

• Include a pay in lieu of notice (PILON) clause - so that you can remove a disruptive employee more quickly.

• Remember that probationary periods and fixed term contracts are useful management tools but have no real legal standing - if you get rid of someone, it's still a dismissal and if they have worked for you continuously for over two years, they can claim unfair dismissal. There is no qualifying time limit on many categories of dismissal or for discrimination claims.

• Take expert advice on restrictive covenants - these are difficult to enforce, particularly if they are very onerous. You may be able to restrict someone from working for a competitor for some months after they have left your employment, but it will depend on the geographical and time restraint you wish to impose. Courts begin from the position that they are not to be enforced. You will need to have a very good reason as to why yours should be enforced.

• Have a suspension clause - to allow you to suspend an employee on full pay while you investigate an allegation. A suspension whilst an investigation takes place is not a disciplinary sanction, it is a neutral act, this may need to be carefully explained to an employee

• Have a clause allowing you to make deductions directly from wages - for example for unpaid bills, holiday taken in excess of that accrued or costs of cover if incorrect notice given on termination.

• Make sure you get them signed and returned! - it's surprising how often businesses don't do this, which makes many of the above clauses unenforceable. Many clients have allowed this to slip and then find the employee is not willing to sign the contract. You may also find that working practices that have been allowed to continue unchallenged for some time become custom and practice. There is no reason why a new employee shouldn't sign their contract on day one of employment or before.

Don't

• Make the disciplinary procedure contractual from day one - you can dismiss employees without following the ACAS code in certain circumstances during the first two years of employment. If the disciplinary, or performance management procedure is part of the contract then you can face a breach of contract action from day one of employment.

• Include long notice periods from employer to employee from the start of employment - notice periods do not have to be the same from employer to employee as from employee to employer. If you offer three months' notice to an employee from the start of employment, you will need to pay this in lieu, even if you dismiss someone after a few weeks of work, unless you can argue they were removed for gross misconduct. Statute states that anyone employed for under two years is entitled to one week's notice, even if you ask for more from the employee.

• Have a contractual performance management process or capability procedure - we see many businesses tie themselves up in knots because of such policies. Many businesses cause themselves huge headaches by having terms in their contracts that are very onerous on the business, there is no reason to have such clauses in contracts. Sometimes these are copied and cut and pasted from other larger businesses and are unhelpful to your business.

Have any questions or in need of additional help? Contact us for a free review of you current contracts of employment and employee handbook on 01242 57016, email info@eightlegal.com or visit our website at www.eightlegal.com.

Please note - the information in this article is for guidance only and is not a substitute for specific legal advice.