Sickness absence during a capability procedure
We have written to invite a member of staff to a formal capability hearing after a period of informal professional support. He is now off work sick. What is the appropriate course of action for us?
As a general principle, sickness should not unnecessarily delay a capability procedure. It is wrong for a member of staff to be absent just to slow down the procedure. However, each instance of absence needs to be assessed on an individual basis.
In this case, it may not be possible to continue with the procedure without your colleague being present. In some cases, the formal procedure may be so advanced that it can reach an outcome in the member of staff’s absence. Check the capability procedure to see if it gives guidance. If the absence becomes long term, you
An employee has a fit note/medical certificate and has been off for an extended period of time; can I do anything about this?
The existence of a fit note/medical certificate does not exclude you from managing the absence of an employee. When considering your approach, you should give consideration to the nature of the condition and the likelihood that a return to work might be possible in the near future.
Care should be taken to identify whether the condition might fall within the definition of a disability in accordance with the Equality Act 2010. Again, this does not exclude you from managing the situation, but it does place a requirement that you give full and proper consideration to making reasonable adjustments to the workplace and to the job role in order to accommodate the individual requirements. This must be considered on a case-by-case basis.
Regular contact with the individual during the period of absence is recommended - case review meeting agendas may include a number or all of the following: update on condition; timescale of when a return to work may be envisaged; reasonable adjustments; phased return; access to medical records request; availability of alternative employment on either a short-term or permanent basis.
The case review meeting is not about questioning the validity of the illness/condition (except in very exceptional circumstances where evidence exists to this effect). Your role is to consider whether the individual levels of attendance are satisfactory for the needs of the business, and how we can support this individual to facilitate a successful return to work. In some instances it may be appropriate that the individual’s employment is terminated, but you must be able to demonstrate that this was only considered as a last resort.
Holidays while on long-term sick leave
A member of our staff who is on long-term sick leave is planning to go away on holiday. Is this acceptable and, if not, what steps should we take?
It is reasonable for you to expect staff not to go on holiday during sickness absence without first obtaining approval. Your absence management procedure should make this clear and should also include arrangements for regular contact between you and members of staff during long-term absence. Approval for a holiday need not, therefore, be a formal procedure.
Whether you decide to give approval or not will depend on the circumstances. In most cases, it will be self-evident that a holiday will assist the recovery to full health. However, a holiday could include activities that are clearly at odds with the nature of the illness and likely to affect recovery. If unsure, you should accept advice from the member of staff’s GP or from the occupational health service, where appropriate.
Sickness absence and the new Fit-for-Work scheme
I understand that, in future, a GP may be able to refer an employee to the Government’s Fit-for-Work service for a health assessment and development of a Return to Work Plan if he or she takes sick leave. Are employers obliged to abide by such a plan?
Under the UK Government’s Fit-for-Work scheme, GPs will, from the autumn of 2015, have the option to refer patients (with their consent) to the Fit-for-Work service if they have been, or are likely to be, off work for four weeks or more.
Fit-for-Work has been instigated to assist GPs, employers and employees manage sickness absence and provides access to work-related health advice via a website, advice line and free referrals for an occupational health assessment, which in most cases will be via telephone, although face-to-face assessments may also take place. The assessment will seek to identify all potential obstacles preventing the employee from returning to work (including health, work and personal factors) and involve agreeing a “Return to Work Plan” designed to advise and make recommendations for interventions to help the employee return to work more quickly.
When deemed appropriate by a case manager and the employee’s consent is given, employer occupational health services or other employer representatives will be consulted during the formation of the Return to Work Plan and when discussing the recommendations within the finalised Plan.
The Return to Work Plan will be shared with the employee and, with their consent, also with their employer and their GP. Employers and employees will receive Return to Work Plans via email, or where appropriate by post. It is not mandatory to progress the interventions recommended by Fit for Work, unless this is required to meet employers’ obligations under the Equality Act 2010.
Guidance from the Government clearly states that the decision about whether to implement any recommendations made in a Return to Work plan remains for the employer and the employee. Employers will continue to have responsibility for managing absences and hence decide if the interventions/ adjustments are reasonable and affordable.
Find out more
Croner is the UK’s leading provider of information, advice and support in the areas of employment law and health and safety. Their qualified specialists have the experience to fully understand the issues and concerns you face working in general practice.
All Practice Xtra members can benefit from free access to the Croner helpline, for legal advice and support with matters including sickness and absence, holiday, pay and employee rights. Whatever you need to know they will provide you with information you can trust, whenever you need it
Gold Practice Xtra members can benefit from free access to the Croner-i Professional Practice Manager website. It’s a resource for everyday management, with a range of templates you can download and customise for your practice. The absence and leave library includes model policies, ‘how to’ guides, sample letters and forms and factsheets for employers and employees.
Contact Medical Protection member services on 0800 952 0441 for more information about using Croner services or becoming a Practice Xtra member.