Managing absence: frequent vs long-term

LAW-CALL

The team at Law-Call, a 24-hour legal helpline available to Alliance members, outline the differences between managing frequent absence and long-term absence

Not all patterns of absence fall neatly into one category, which means that some flexibility is needed when managing absences.

Contained within the Alliance publication, People Management in the Early Years, there’s a standard absence policy and procedure document that covers both short-term and long-term sickness absence.

If you don’t already have such a policy in place, just follow this link to locate and adapt the standard Alliance template: bit.ly/People-Management-EY.

Frequent, short-term sickness absence

As parents/carers visiting your group will always be responsible for their own children, you don’t need to be Ofsted registered. However, you will still need to consider the safety and wellbeing of those who attend, including any volunteers you may have.

Accurate measurement of the employees’ absence due to sickness is, alongside trigger points for further action, the main tool in effective absence management – particularly with frequent, short-term sickness absence.

This can then be used to identify high levels and patterns of absence, leading to a decision on setting attendance targets, which may be the number of days’ absence per employee over a 12-month period.

When reviewing an employee’s sickness absence record, any patterns that cause concern should be identified and discussed. This could include repeated absences on a particular day of the week or that tend to occur at a particular time, such as just before a monthly deadline or towards the end of a busy period.

If an employee’s absence due to sickness is of concern, or informal action has not succeeded in improving attendance to an acceptable level, consideration should be given as to whether there are grounds for formal action.

Going through the stages

Your Sickness Absence Review Process should have three formal stages, with provision for an appeal at each stage. Employees will have the right to be represented by a trade union representative or work colleague at any formal Absence Review Meetings.

Timescales for each stage will depend on individual circumstances; some sickness absence issues may be dealt with over a longer or shorter period than others. This means that when you decide to move to the next stage of the formal process will vary case by case.

Furthermore, when using attendance targets and trigger points, consideration must be given to individual circumstances, pregnancy, the impact of any underlying medical condition or disability, and any reasonable adjustments to aid the employee’s attendance. If an attendance target is set, the employee should be told how this will be reviewed and over what period.

Factors to consider

What are the issues causing the absence?
What effect is the absence having on service delivery and/or colleagues?
What additional support could be given?
Has attendance improved because of the informal processes?

Initial absence review

Meetings: Stage 1 and Stage 2

At an Absence Review Meeting at Stage 1 or Stage 2 of the formal Sickness Absence Review Process, you should outline the sickness absence concerns leading to the meeting and review both the case circumstances and actions taken to date. The employee should have the opportunity to state their case and raise any factors they wish to be considered. You should identify if there are any measures – such as an occupational health referral – that may be beneficial, discuss any attendance targets for improvement and provide a timescale of review.

If, following the meeting and the evidence presented, it’s considered that no further action is required, this should be confirmed to the employee in writing.

If, as a result of the meeting and the evidence presented, the employee’s attendance is deemed unsatisfactory, you should produce a formal written warning stating:

the improvement in attendance required
the timescale for improvement
any support to be provided
the consequence of not meeting the attendance target within the review period

It should also set out the employee’s right of appeal. A formal written warning will remain active for a specified period. This will usually be six months for a first written warning, and one year for a final written warning, after which time it will remain on file for reference purposes but will be disregarded when deciding future sickness absence proceedings.

Formal Stage 3 Absence Review Meetings

If the employee’s attendance does not improve, as specified in the written warnings issued at Stage 1 or Stage 2 of the formal Sickness Absence Review Process, the employee should be required to attend a formal Stage 3 Absence Review Meeting.

The employee should be notified in writing and given notice of the meeting. The invite letter should explain the purpose of the meeting, provide details of the sickness absence concerns and the reasons for those concerns, explain that one possible consequence of the meeting may be the termination of employment and advise the employee of their right to be accompanied. The employee should be informed of the outcome decision in writing, even if it is considered that no further formal action is required.

The notification of the decision to dismiss should include the right to appeal, the reasons for dismissal and the date that their employment will terminate, together with details of any notice arrangements.

Long-term sickness absence

Any period of absence from work because of sickness or ill health lasting for four weeks or more is considered as long-term sickness. This includes long-term absence because of a single illness or disability and repeated periods of absence arising from a single illness or disability.

Formal stages for long-term absences

First formal review: You should contact the employee to arrange a meeting to discuss the ongoing absence and establish when (and if) a return to work might be expected. If this is not in the foreseeable future or they will not be returning, a medical report from a GP or Occupational Health (OH) Practitioner should be requested. If the employee is too ill to attend a meeting, you could consider attending the employee’s home or a third-party premises if the employee prefers.

Second formal review: Once a GP/OH medical report has been received, this should be discussed at a second meeting with the employee, at which they have a right to be accompanied by a colleague or trade union representative. If you can’t agree on dates within a reasonable period, ultimately, you can decide in their absence. There are likely to be four outcomes:

return to work within a reasonable period
alternative employment
reasonable adjustment
termination on notice on the grounds of incapacity

The dismissal of an employee on the grounds of long-term ill-health should be a last resort only after all other options have been fully considered and discussed with the employee, and after all possible adjustments have been made to support the employee’s continuing employment.

Considerations

Long-term sickness absence can be a fair reason for dismissal. However, for a dismissal to be fair in practice, the employer would have to show that the employee’s long-term absence was sufficient to justify dismissal and that it acted reasonably in dismissing the employee for this reason.

The key question is whether, in light of all circumstances and business requirements, the employer can reasonably be expected to wait longer for the employee to recover and return to work. This will depend, among other things, on the size and resources of the setting, and the degree of disruption or difficulty that the employee’s long-term absence is causing.

Consideration must be given to whether an individual’s absence may be caused or exacerbated by a disability under the Equality Act 2010. Disability is defined under the Act as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on an individual’s ability to do normal daily activities. Where this is the case, care should be taken to avoid discrimination arising from the disability. In practice, this means that any action taken in response to absence concerns will need to be proportionate and appropriate.

Consideration must also be given to whether there are reasonable adjustments that could be made to the employee’s working arrangements - including changing duties or providing additional training, as well as making reasonable adjustments to the application of the Sickness Absence Policy.

If an employee has a pregnancy-related illness, you should consider how this could affect them doing their job and should feel free to discuss this with the employee concerned, as in many cases, simple adjustments can be quickly discussed and agreed. Medical information should still be obtained, and these absences should be recorded as ‘pregnancy-related’, where appropriate.

These illnesses are normally of a temporary nature, thus the law gives extra rights and protection to pregnant employees. Illness may also trigger an early start to maternity leave. It is good practice for risk assessments to be undertaken to identify any risks that might affect women who become pregnant.

If, after meetings and presented evidence, formal action is deemed necessary, advice should be sought from Law-Call – particularly if you have decided to dismiss. We can then establish that you have acted fairly and properly to prevent or mitigate any foreseeable claims against you.

Find out more
All Alliance members can make use of Law-Call's service for advice. You can find their contact details in the Members’ Area of our website at portal.eyalliance.org.uk.

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