2. Sickness absence policies

Overview

Employers have a legal duty to protect their workers’ health and safety in the workplace and this includes both physical and mental health, such as work-related stress, anxiety and depression (see Chapter 6 — The law).

In addition to an obligation to protect workers’ health and safety, employers are legally liable for injuries to workers that are caused by their negligence. This includes psychiatric injuries such as depressive or anxiety disorders, which can result, for example, from excessive workload demands or bullying. Recent years have seen a number of high profile, very large awards against employers, pushing this issue higher up the agenda.

A worker’s condition may also amount to a disability, triggering protection under the Equality Act 2010 (which replaces the Disability Discrimination Act 1995).

Duty to consult union safety reps

Union safety reps (where there is a recognised trade union) have the legal right to be consulted about any matters that affect health and safety. Their role is not limited to investigating hazards and examining the causes of accidents (Safety Representatives and Safety Committees Regulations 1977).

In workplaces where there is no recognised union, employers must consult employees on health and safety matters under the Health and Safety (Consultation with Employees) Regulations 1996, either through elected representatives or, if none have been elected, through direct consultation. The benefits to health and safety of effective consultation with unions are well-established and recognised by the Health and Safety Executive (HSE).

Research carried out for public services union UNISON in 2006 revealed a tendency, even in unionised workplaces, for many employers and unions to view sickness absence as a ”management” issue, as opposed to a matter of health and safety, even where workplace relations were good. Forty per cent of the safety reps who participated in the UNISON survey were “never” consulted on absence policies. A third were “sometimes” consulted and just 28% were “always” consulted.

The 2010 survey by LRD of union reps for the purpose of this booklet is a little more encouraging. Approximately half of those who reported changes to their sickness policies in the last two years indicated that they were consulted about those changes, suggesting that consultation with union reps about changes to sickness absence policy may be becoming more commonplace.

Several reps reported good practice such as monthly meetings with management, at which sickness absence is reported and discussed. What is unclear is the depth and scope of consultation, and whether it represents a genuine move by employers towards a more collaborative approach to the issue of worker well-being, or alternatively an attempt to secure worker “buy-in” to unpopular change.

Many of the changes reported to LRD in 2010 are designed to make sickness procedures tighter and in some instances, potentially harsher in operation. There were, however, some exceptions, such as the report of a successful negotiation by Unite reps of four days’ contractual sick pay at the healthcare logistics company Movianto UK Limited, where previously workers had no contractual sick pay entitlement.

In reality, sickness absence is clearly a health and safety issue, well within the remit of union safety reps. In the period following the UNISON survey, the then Labour government sought to move workplace health higher up the policy agenda, through its cross-governmental initiative under the “Health, work and well-being” banner, which aimed to promote positive links between health and work. This followed Dame Carol Black’s 2008 wide-ranging review of the health of Britain’s working age population Working for a healthier tomorrow.

However, in a thoroughly regressive step, the coalition government appears to be moving away from any wider emphasis on worker well-being, with the Department of Education’s announcement in its 2011 Business Plan of its intention to publish data on teacher sickness absence “by school”, to enable parents to make “informed choices”.

The TUC encourages sickness absence policies that support sick or injured workers, arguing that: “Positive sickness absence policies, developed in partnership with unions, can make positive inroads into reducing absenteeism, especially if combined with good preventative measures.”

The role of union safety reps

The HSE has produced a practical guide for safety reps: Working together to prevent sickness absence becoming job loss, updated to take account of the new “Statement of Fitness to Work” (Fit Note), which is looked at in more detail below. The HSE suggests six proactive ways in which safety reps can collaborate with the employer to improve worker well-being:

• helping identify measures to improve workers’ health and to prevent it being made worse by the negative aspects of work;

• suggesting that employers develop workplace plans and policies on sickness absence management;

• helping workers who are on sick leave to keep in touch with work;

• helping employers plan adjustments to enable sick workers to return to work;

• providing more proactive support to sick workers to help them return to work; and

• helping promote a better understanding of disability and health conditions in the workplace.

General union Unite stresses the need for employers to look at the overall working environment and states: “It is vital that consideration of work and health goes further and looks at work organisation, job design and management standards” and in March 2010, the Good Work Commission, a business-led, but multi-perspective group chaired by Will Hutton of the Work Foundation, including the general secretaries of Usdaw and pilots’ union BALPA, launched a wide-ranging investigation into the changing nature of work quality in the UK.

Results from the CIPD 2010 Absence management survey reveal a profound difference in approach between the public and the private sector when it comes to recognising the integral role that wider questions of worker well-being should play in any absence management strategy: 60% of public sector employers are more likely to adopt procedures designed to reduce absence through promoting good health, compared with only 32% in manufacturing and 28% in private sector services. This difference underlines the key role unions play in promoting worker well-being.

As UNISON points out in its guide, Making us better, effective union safety reps can play a vital part in developing better sickness absence management. UNISON points to the limited range of many sickness absence policies and agreements, and the tendency to emphasise procedural issues such as the rules for maintaining contact with employees whilst absent, record keeping, unauthorised absence, absence management procedures and sick pay rules, as opposed to issues relating to employee welfare, the prevention of sickness in the first place, rehabilitation, supporting successful return to work and follow-up strategies to ensure that the employee re-integrates effectively.

Of particular concern is the growing evidence of a link between physical illness, such as muscular-skeletal back pain, that can result in long-term sickness absence, and mental illness, such as depression and anxiety.

Monitoring absence trends

90% of safety reps surveyed by UNISON in 2007 believed that their employers kept data to monitor absence trends, but just one in five said that they were given copies of the data. LRD’s most recent survey is more encouraging, with roughly 50% of reps confirming that they are consulted on the results of analysis of sickness absence trends.

However, others report that although their employer monitors sickness absence trends, reps are either not supplied with the data, or are not consulted over the results of trends analysis. Rather than being involved in reviewing sickness absence trends at an organisational level to help detect underlying causes, many reps only become involved at the individual level, when a particular worker’s pattern of absence falls below a required management standard.

There are good reasons for monitoring sickness absence trends at an organisational level, for example, to help employers identify welfare issues and take appropriate remedial action, especially if these are broken down by gender, department or team, so that particular “hotspots” of absence can be identified to see whether there is an organisational reason relating to work design or poor management, to design action plans and to build in appropriate support.

Reps should be given copies of absence trend data and consulted on the ways in which it is used, they should discuss significant trends at meetings of the safety committee and input into action plans based on the data. Especially given the growing evidence of “presenteeism” and workplace stress reported in Chapter 1 of this booklet, these should extend, for example, to regular confidential worker well-being surveys and initiatives.

The purpose of data collection should always be clearly explained, and it should never be used to intimidate or threaten employees.

Trends in the development of sickness absence policies

Almost half (47%) of the reps who took part in the 2007 UNISON survey believed that sickness absence procedures are used to penalise genuinely sick employees, and this perception is supported by some of the more recent comments from safety reps to LRD. As highlighted in Chapter 1 of this booklet, there is persuasive evidence that employers may be over-estimating the level of abuse of sick leave and pay policies.

As the UNISON report points out, this may lead to harsher penalties and an increase in absence: “Penalising genuinely ill employees immediately following absence, or later through an appraisal system, can create a range of negative repercussions for the employee and employer alike. For example, employees might feel compelled to go to work to avoid being reprimanded, potentially spreading disease. This will also have a negative effect on productivity, morale, motivation and the desire to remain employed with the organisation.”

44% of the reps who took part in the UNISON survey said sickness records formed part of the employee’s appraisal.

Sickness absence policies should not be used to intimidate or punish employees who are genuinely ill and should not force people to come back to work before they are properly well, which can happen with financial incentives or procedures that are intimidating or based on disciplinary action.

A recent worrying example of this trend is the move by Central Manchester University Hospitals Trust to change the sickness absence policy so as to link absence directly to the entitlement to the annual pay rise. Press reports in October 2010 suggested that staff who take more than 18 days off sick, or four separate periods of sickness absence, will be denied their annual pay rise. UNISON has reacted angrily, arguing that such a move will amount to a breach of health workers’ contracts of employment. In particular cases, it could also amount to disability discrimination, especially against staff on long-term sickness absence. It is also likely to encourage people to come to work when unwell and seems particularly out of place, of all places, in a hospital setting.

A number of examples of inappropriate use of policies were reported to LRD this year. For example, one rep in the private sector noted: “Trigger points are enforced whether the sickness is real or not. If a person spends three weeks in hospital, then when they return to work, they get a warning for being off sick for the 15 days”.

Examples of penalties reported to LRD include:

• loss of up to the first two days of sick pay where absence target is not met (private sector: food manufacturing, print journalism);

• cut in year-end bonus entitlement if individual sickness record falls below target (private sector: manufacturing, financial services, technology);

• loss of contractual sick pay if an individual is off sick on more than 3 separate occasions in a calendar year (private sector: journalism);

• loss of contractual sick pay once the employee reaches “Stage 2” of an absence procedure (private sector: fast food retail);

• loss of contractual sick pay if off-sick for more than 4 days a year (local council);

• loss of a proportion of a six-monthly attendance bonus and annual profit share (private sector: technology);

• managers setting “zero absence” targets (private sector: financial services);

• no overtime for seven days following absence, without a GP note to prove sickness is “genuine” (private sector: mining machinery);

• an agreed link between short-term sickness absence and contractual holiday entitlement (public sector: fire service);

• threat to continuous professional development (CPD) payments if worker takes more than six days of self-certificated absence in a year (public sector: fire service);

• absence record contributes to PRP award (private sector: manufacturing);

• cut in Christmas bonus (construction: private sector);

• cut in wages by one Grade for a maximum of six months following more than three absences in any rolling 12 month period. The rep concerned reports that this part of the policy is not new, but that in the past, it was very rarely implemented, whereas it is increasingly used as a threat in absence meetings (construction: private sector); and

• sickness absence record used as a criterion for redundancy selection.

Examples reported to LRD of financial and non-financial “incentives” used by employers include:

• attendance bonus;

• escalating attendance bonus: £100 for one complete year’s attendance, £200 for two, £300 for three, up to a maximum of £500 for five years of 100% attendance, and continuing at £500 per further complete absence-free year (private sector: manufacturing);

• one day’s holiday if not sick for a year (private sector: supermarket logistics, technology company);

• letter of congratulation/certificate for staff who complete a full year without sickness absence (private sector: infrastructure maintenance);

• £20 in high street store vouchers for staff who complete a full calendar year without sickness absence (private sector: chemical processing);

• raffle or draw with money prizes. Entry restricted to those with 100% attendance (private sector: food manufacturing); and

• a sum of money in an “attendance pot” is shared between those employees with 100% attendance over a six month period (private sector: manufacturing).

One example produced by a rep driving petrol tankers for a petroleum company strikingly illustrates the scope for attendance targets to impact counter-productively on behaviour. “We have a monthly £100 incentive whereby this bonus is paid if we have no health and safety issues such as road traffic accidents, crossover of product whilst delivering, spillages etc. It’s also linked to sickness, so what we have is an incentive to work whilst sick, so this cannot be positive whilst driving a 44 tonne petrol tanker. On [another] contract, there is a further £500 annual bounty if you have 12 months clear of health and safety incidents or sickness. This is not a good set up!”

In another example of the danger of attendance targets having a perverse effect on wider organisational objectives, a rep working in a food manufacturer reports: “Without doubt, when a member returns to work they are 99% sure of being disciplined after the return to work interview. This applies even if the individual has had, for instance, diarrhoea, vomiting and has been sent home or phoned in with the symptoms. There is, of course, a company requirement not to enter site, [for hygiene reasons] but the member still receives disciplinary action against them…Even with a genuine illness, the member will get the same punishment”.

UNISON, in its 2007 report, cautions against the use of financial incentives to reduce sickness absences which it says “trivialise illness, encourage members to come into work when they are ill, and undermine a more thoughtful approach.”

A more flexible approach to time

An alternative way forward, where work organisation allows, is to promote an approach to attendance based on more flexible time management, for example by encouraging flexible working patterns or home-working, or by allowing staff to “bank” time, helping staff manage their workload and work-life balance, reducing the likelihood of staff succumbing to mental health absence and helping staff to manage attendance issues that relate to the sickness or injury of dependants, especially children.

The TUC supports the trend towards increased opportunities for flexible working, including home working, and has welcomed the coalition government’s confirmation that it intends to consult in 2011 on extending the right to request flexible working to all employees. The 2010 CIPD Absence management report reveals that the public sector is far more likely to adopt flexible working procedures than the private sector (75% in the public sector, compared with 35% in manufacturing and 42% in private sector services).

Management discretion — the need for effective line management training

Management discretion can lead to unfairness in the way in which sickness procedures are implemented. UNISON identifies consistent training for management as a priority in creating fair absence procedures that are free from favouritism and victimisation. Several union reps who contacted LRD this year highlighted problems resulting from management inconsistency and poor line management training. Individual managers vary in their approaches, some taking a stricter approach than others. As one rep notes: “The single greatest problem is a lack of understanding of absence and absence policies, which in turn leads to inconsistent application.”

At one private sector employer a Unite rep reported that the union had negotiated the removal of local “management discretion”, so that all staff now have an agreed sick pay entitlement for the first three absences in three months or four absences in 12 months.

One public sector rep related how a much more formal system has been introduced in the last two years, so that all absences are followed by an “interview” with the line manager, regardless of cause or duration, after which a template form is completed and sent to the Human Resources (HR) department. HR in turn send weekly reminders to line management to implement the new system. There was a “half-hearted” attempt at “all-staff” consultation on the changes, but no in-depth discussion with the union, despite protests.

Inconsistent treatment — different approaches to absence for different categories of worker

A number of reps responding to the LRD survey highlighted a tendency to approach sickness absence differently for different categories of worker, typically following the policy “to the letter” for production or shop floor staff, with “rigorous policing” of absence, whilst taking a more lenient approach to sickness amongst office- based or professional staff.

A rep in a bus company reported that staff above driving level do not seem to be subject to the same attendance policy. Another rep complained of managers being reluctant to upset “key employees” by enforcing an absence procedure, and indicated that for this reason, some absences are not even recorded. Another rep observed that what matters in relation to the enforcement of sickness absence is “who you know and what you know”. Another commented that a university’s policy, based on the “Bradford Factor” (see box on page 22), is “not being implemented in the same way in all parts of the institution”.

At one London borough, UNISON encountered situations where managers were invoking the procedure before the triggers have been hit and disregarding the assessment criteria for short-term absences.

However, many reps report the opposite problem, namely rigid implementation of rules and a reluctance to focus on individual cases of absence: “The problem…is that they are not allowed to use discretion and the rules on absence are too “hard and fast” with no room for understanding of an individual’s predicament” (private sector: food manufacturing).

Helpfully, one rep who found aspects of the sickness policy ambiguous succeeded in persuading the employer to build in some worked examples to provide guidance.

Sickness absence review mechanisms

The survey evidence collected by LRD for the purpose of this booklet points to a tightening up of sickness absence procedures, often making for harsher implementation. Several reps reported the rolling out of new absence monitoring systems, some of which are on-line, with a built-in reminder system for the line manager.

One rep reported that monitoring has been outsourced to an external company. Others commented on the loss of previously negotiated concessions. For example, one private sector employer has shifted from a previously negotiated position of written warnings lasting six months, back to the former position that every written warning for attendance must last 12 months.

The 2010 CIPD Absence management survey contains some revealing data on the differential approach to absence management across sectors: 94% of respondents in manufacturing or production report that they are likely to respond to sickness absence using disciplinary action, compared with 77% in the public sector, 75% in private sector services and 74% in not-for-profit.

All the policies reviewed by LRD that contain procedures for managing sickness absence do so by setting trigger points for absence review. These can be a specified number of absences within a certain period (such as four or more absences in a year), a specified number of days, or a combination of the two (for example, a total of ten days’ absence on three separate occasions). Several reps have reported the shortening of the trigger point in the last two years, and a rep from the Fire Service complained that the triggers set within the policy are very low, resulting in too many interventions.

A number of reps told LRD that their employer’s rigid adherence to thresholds for formal meetings and warnings was causing difficulties.

Another theme highlighted by reps was a tendency for organisations to work through the various stages of the process rigidly and mechanically, as if jumping through formal hoops leading up to an inevitable dismissal. “When taking cases for appeal, it is very rare the company changes its mind. It’s as though managers are just going through the motions.”

In theory, the Bradford Factor is intended to highlight absence patterns, so that line managers can make a decision whether or not to intervene by discussing the absence with the individual to establish its underlying causes and to decide on the best form of intervention, if any.

However, responses to LRD’s survey suggest a tendency in some workplaces towards a “tick-box” mentality, so that achieving a certain “Bradford” score is itself perceived to trigger an automatic penalty or negative outcome. Whatever line management intentions, there appears to be widespread perception amongst workers that formula-based absence review procedures conducted at fixed trigger points are “disciplinary” in nature, and form part of a mechanistic step-by-step process intended to facilitate an eventual fair dismissal assuming the absence pattern is not remedied and good attendance sustained to the satisfaction of the employer.

One employer has adapted the Bradford formula to include lateness and clocking failures.

Several reps reported an increase in the number of staff reported to Occupational Health once the absence trigger point has been reached.

Monitoring and review procedures should not be used to penalise employees who are ill. Union reps should be involved in drawing up a broader sickness absence policy that recognises the link between absence management and a healthy workplace and work-life balance, and that is designed to support workers who are off sick and to help them manage their return and re-integration once they are well enough, focusing on welfare rather than disciplinary action.

Statement of fitness for work — the Fit Note

The new “Statement of Fitness for Work” or “Fit Note” was introduced in April 2010. Properly administered, the Fit Note should help to encourage a more proactive approach to the rehabilitation of employees back into the workplace, with its emphasis on what the employee is able to do. The design of the Fit Note is intended to recognise that the main barriers to returning to work after a long absence are often psychological. Figures provided in research by Waddell and Burton for the HSE (2006) have suggested that an individual off work for six months has an 80% chance of still being off work in five years time. The TUC sees an integral partnership-based role for safety reps in a well-managed Fit Note regime.

The Fit Note is stored electronically by the GP, but as with the old certification system, a hard copy is handed to the employer by the worker and is used to prove entitlement to sick pay. The Fit Note allows the GP, in collaboration with the patient, to suggest a return to work based on one of four possible options:

• a phased return to work;

• altered hours;

• amended duties; and

• workplace adaptations.

There is no simple Fit for Work option. This is because, as was previously the case, where a worker is fully fit for work, the GP will simply not issue a new certificate. A GP should only recommend a return to work for a person who is not fully recovered after discussing it with the patient and making sure s/he is fully aware of what is being suggested.

In many cases, employers will need expert advice in order to implement suggestions made by the GP, and union reps will have a role making sure that the employer always seeks professional support before introducing any adaptations. As well as private occupational health providers, employers will be able to access NHS occupational health services.

These are to be significantly realigned in 2012 with the result that NHS Plus is to focus on occupational health provision to its own health workers, whilst a separate division, the NHS Health and Work Provider Network, to be known as the NHS Plus Consortium, will offer occupational health services on a commercial basis. Small employers will be able to access the Health4Work Advice Line on 0800 8778844.

An employer is not obliged to accept the advice on a Fit Note, but if the employer decides not to follow the advice, the Fit Note must be treated as if the GP has advised that the employee is “not fit for work”. The TUC anticipates that this may be a source of problems in the administration of the new scheme, as employers may try to argue that the employee is fit for work since s/he is no longer “signed off”.

However, government advice on this issue is clear. It states:

“If it is not possible for [the employer] to provide the support for [the] employee to return to work, both [employer and employee] should use the Statement as if the doctor had advised ‘not fit for work’. Your employee does not need to return to their doctor for a new Statement to confirm this. Unless the employer implements the advice on the medical certificate, the worker is not fit to return and should continue to be paid his or her sick pay entitlement.”

In practice, problems are likely if the employer either fails to take the steps promised, or fails to carry them through adequately. An employee in this position should seek help from his/her union rep, and would normally use the grievance procedure.

The employer should carry out a revised risk assessment of any changes or adaptations needed to implement the recommendations on the Fit Note, to make sure that new risks are not being introduced.

The Fit Note procedure does not change the employer’s overriding statutory duty to make reasonable adjustments in the case of a disabled employee, regardless of what the GP recommends.

Some GPs have expressed concern that they are ill-equipped to provide occupational health advice and lack an adequate understanding of particular workplace demands. Others worry about how the new role will jeopardise their role as confidential “patient advocate”.

These worries are echoed in a survey by insurance company Aviva in October 2010 in which 65% of GPs questioned reported feeling ill-equipped to provide Fit Notes. Sixty eight per cent of GPs were sceptical as to the chances of the new system cutting absence levels. And of 1,000 employees questioned, 57% did not think their GP was in a position to say whether or not they could return to work.

A particular problem appears to be lack of time, with 43% believing that the 10-minute appointment does not offer enough time to make a proper diagnosis. According to the BMA, the biggest challenge to the Fit Note regime is the widespread lack of availability of occupational health services, which are only accessible to 13% of employees.

An experimental trial using a group of 583 GPs also revealed some worrying results. The trial conducted by the Department of Work and Pensions in nine Primary Care Trusts shortly before rolling out the scheme in April 2010 involved hypothetical cases of back pain and depression and the results suggested that patients were 38% more likely to be assessed as fit for some work under the new scheme than under the old one.

Such a high figure suggests either that a significant number of potentially fit workers were being signed off as unfit for work under the old scheme, or that a high number of workers risk being sent back to work prematurely under the new scheme.

Absence procedures need to be amended to take into account the new Fit Note procedure. The TUC recommends that union reps should try to negotiate a “no detriment” clause, to make sure that nobody is worse off by having to return to work, or by having to work reduced hours when returning under the guidance in a Fit Note.

Where an employer attempts to use recommendations in a medical certificate to alter a person’s pay or conditions, their rep should seek advice from their union.

The TUC has produced a helpful guide: Preparing for the new fit note: Guidance for union representatives, which is available online.

Reporting sickness absence

The rules for notifying the employer that an employee is off sick vary according to the type of organisations and work undertaken and the arrangements for cover. In the examples provided to LRD, the time within which the employee must phone in varied from “before the start of the shift”, “within an hour of the usual start time” to “as soon as is reasonably practicable”.

An employer who pays only statutory sick pay (SSP) cannot insist that the employee personally (as opposed to a family member, for example) notifies them of the absence, but employers who pay a higher rate of occupational sick pay can. Clearly there will be circumstances in which this would be impossible if the employee is too ill to get to a phone and it would be unreasonable of an employer to penalise someone in these situations.

In most cases, employers require their employees to either self-certificate or complete a form on their return for all absences, including those for a single day. An employer cannot insist on a Fit Note for the purposes of SSP for the first seven days of sickness absence, and it would be unusual for an employer to insist on a Fit Note for payment of the first seven days of occupational sick pay. GPs may refuse to provide a Fit Note for less than seven days’ absence without a request from the employer, and may charge for it.

Once the initial seven days have passed, an employer will normally insist on Fit Notes to cover the whole of any further period of absence, as a pre-condition of payment of sick pay, both statutory and occupational.

Where an employee falls sick during pre-booked holiday and wants that holiday treated as sick leave (see Chapter 3) an employer is likely to insist on a medical certificate from day one of the sickness absence (at the cost of the employee) before paying any contractual sick pay.

Policies reviewed by LRD that covered reporting of absences for part of a day generally stated that absences of less than half a day were not recorded as sickness, whereas those that last more than a half-day were.

Contact with employees during sick leave

Many sickness absence procedures set down rules for keeping in touch during sickness absence. They may require employees to contact their employer at regular, even pre-set, intervals, but this should not be exercised in a manner which would be regarded as unreasonable. In the examples provided to LRD, it was common for procedures to require employees to phone up on the first day of sickness absence and again on the fourth day if they were not back.

This may be appropriate for short-term absences if the employer is not aware of the likely duration, but if an employee has already told them that they are going to be off for longer, this should not be required.

As with other aspects of the sickness absence procedure, the LRD survey indicates a general tightening up of reporting procedures. Examples include requiring staff to ring in each day of the absence, rather than just on the first day, and the increased use of home visits.

One private sector rep reported that failure to notify within the first three hours of sickness, or to re-notify on the third and fifth day of the first week and then at the start of every further week of absence, results in the loss of occupational sick pay. Other reps report that to secure payment, staff must adhere rigidly to the reporting requirements.

Several reps report a tendency for some employers to be more rigid in their approach to “reporting in sick” for production or shop floor workers than for other staff. One rep commented:

“Our company is very draconian, especially with production workers, regarding absence monitoring and reporting. For instance, managers will only talk to the employee and not family members, and if employees have not rung into work within the first hour, managers ring the employee personally.”

An employer will want to keep in touch with employees who are on long-term sick leave, and Acas recommends that they do. This is unavoidable as an employer will need to know how long an employee is likely to be off so they can make arrangements for their work to be covered.

It will also make it possible for them to plan for the employee’s return. This can also be beneficial to the employee, if handled properly. It will keep them up to date of developments at work, stop them feeling isolated from the workplace and make it easier for them to return when they are ready to do so.

Early contact is believed to be particularly important in the context of stress-related illness. A 2003 HSE report into best practice emphasises this, and indicates that:

“It is widely accepted that when an employee is first absent with illness due to work-related stress, they should be contacted by someone from the organisation within a week. This person should offer general support to the employee and demonstrate the organisation’s concern for them as an individual, but they should not start to discuss interventions and treatments at this stage.”

Contact should not be used to intimidate workers but to support them back to work. Contact will be seen to be intrusive if the employer turns up unexpectedly or telephones too frequently or at inappropriate times of the day. An employer will need the employee’s consent to visit them at home.

Return to work interviews

The CIPD regards return-to-work (RTW) interviews as one of the most effective ways of managing both short and long-term sickness absence and perhaps unsurprisingly, most reps report that these now play a routine part in the absence management process.

There is a growing trend for RTW interviews to take place after every period of absence, regardless of its duration or cause. They are often used to reinforce a message as to the importance placed on attendance, to make sure people realise their absence has been “noted”.

Around a quarter of surveyed reps told LRD that in their organisation RTW interviews tend to be perceived as having a disciplinary role. One Unite rep observed: “Members are told that they may be on the radar”. Another, from a bus company, commented: “It is used to intimidate staff, to stop them considering going sick again”, “to put people off” (a housing group), “as a disciplinary tool” (consumer organisation), and “dressed up as a support for employees” (electronics manufacturing).

Policies should make it clear that RTW interviews are about the welfare of the employee and should not be confused with any form of disciplinary action. Their success as a genuine mechanism to support rehabilitation depends on the quality and training of individual line management and LRD’s survey reveals fairly widespread concern amongst reps over inexperienced or inadequately trained managers, including a tendency to work mechanically through a template of pre-drawn and sometimes inappropriate questions, or to act inconsistently.

Several reps reported a trend for occupational health advisors to become involved with absence earlier and more frequently than used to be the case.

In an interesting example of the need for sensitivity and clear messages, one rep from a primary care trust commented that staff tend to attend work when sick because they are afraid of the negative impression that an “automatic” referral to occupational health may create.

One public sector rep told LRD that RTW interviews tend to be more supportive when a union rep is allowed to be present, but that management are in the process of removing the right of the rep to attend. As a “quid pro quo” in this case, no-one will be present from the organisation’s HR department.

The statutory right to be accompanied to meetings is limited to disciplinary hearings and grievances. There is no right to be accompanied to a RTW interview, on the basis that it is not a disciplinary meeting.

Consequently, it is for reps to negotiate the right to accompany workers, either every time, or limited to particular cases, such as disability. Remember that the duty to make reasonable adjustments for a disabled worker extends to meeting arrangements (See Chapter 4).

Rehabilitation

The focus of long-term sickness absence procedures should be to help the employee return to work. As such, employees returning to work from a period of sickness absence, particularly if it was long-term, may need a period of rehabilitation before they return to their full duties and a return-to-work plan should be discussed with them.

Even after s/he has returned to work and reintegrated successfully, the RTW plan should include on-going mentoring and access to counselling and support where appropriate. Employees should not be forced back to work until they are fully recovered.

Rehabilitation can include a number of alternatives including:

• a phased return to work;

• changes to work content;

• changes to working hours;

• training;

• adaptations to equipment or workplace;

• transport arrangements; and

• treatment (for example, physiotherapy or counselling).

Although an employer is under no legal obligation to pay an employee in full when they are working reduced hours, it will reduce potential stress if they are paid, and should be considered good practice.

A study commissioned by the British Occupational Health Research Foundation (BOHRF) reported in January 2007 that effective trauma management in the workplace can reduce staff absence in workplaces where workers are exposed to abuse or violence. The study was carried out at Royal Mail, which has a well-established trauma management programme. Incidents reported by its staff, because of the range of jobs they undertook, varied from armed raids and hostage-taking situations to road traffic accidents and verbal abuse. The study found that support offered by the employer can play an important part in their recovery.

Access to external occupational health services can also be important for employees who may not wish to discuss personal issues or ailments with others employed within their organisation. As noted elsewhere, the lack of access to occupational health provision for the overwhelming majority of UK workers is a fundamental problem for the UK’s worker health strategy.

In UNISON’s survey, Absence agreements in the UK public sector: a bitter pill to swallow?, occupational health departments were generally viewed positively by union reps.

Likely impact of the planned abolition of the default retirement age on the management of sickness absence

One rep in the private sector told LRD about more rigorous monitoring of the sickness absence for workers who are closer to retirement age. Reps should be alert to the risk that this sort of behaviour (likely to amount to age discrimination) may become more prevalent among employers as a by-product of the planned phasing out of the default retirement age from 6 April 2011. Some commentators anticipate that as employers begin to take account of the loss of the scope to forcibly retire employees at 65, many may respond by becoming more rigorous in their monitoring and assessment of the “capability” of older workers.

Sickness absence procedures and agency workers

One rep in a private sector food manufacturer reported an attempt to treat seasonal labour more harshly than permanent employees by including a “three strikes and you’re out” policy. This is being resisted by the union.

In practice, the new Agency Workers Regulations, due to come into force in October 2011, will have limited, if any impact on the position of agency workers in relation to sickness absence.

Agency workers will not have the right to claim unfair dismissal under the new Regulations, even if they have sufficient service, and “contractual sick pay” is specifically excluded from the list of terms and conditions for which qualifying agency workers will gain parity of treatment with comparable permanent workers under the new Regulations.