Absence management framework

The main focus of the Black/Frost report was long-term absence which, depending on how it is defined, accounts for a significant proportion of working time lost (see Chapter 2). However, employers’ workplace sickness absence policies are also concerned with recurrent short-term absence. Developments in absence management policies monitored through the LRD Payline database include:

• new targets for sickness absence;

• new policies on short-term intermittent absence;

• new trigger points for the referral of workers to occupational health services (OHS);

• new disciplinary warning arrangements; and

• increased use of the “Bradford Factor” system for assessing the frequency and duration of an individual’s sickness absence (see page 20)

There is a tension in absence policy between investigating and helping to resolve sickness and disability, so that workers can remain in their jobs, removing employees from the workforce who are judged no longer capable of fulfilling their duties, or disciplining those felt to be “abusing” the system.

The latter seems to have got the upper hand at the Department for Transport and its agencies where a new procedure introduced blanket formal and informal trigger points for absence management (see page 20). In this case, absences of five working days or three occasions in a rolling 12-month period required mandatory informal action. Absences of eight working days or four occasions in a rolling 12-month period would lead to disciplinary action — starting with a first written warning, a final written warning and ending eventually with dismissal.

There was already evidence that staff were so anxious about the risk of dismissal under the new procedure that they were beginning to take risks to avoid being absent. For example, one employee continued to work despite having been struck on the head and knocked momentarily unconscious, while another brought his nine-month-old child to work when his wife was ill and he was unable to make alternative childcare arrangements.

Attempts by three civil service unions (PCS, Prospect and FDA) to negotiate a sensible collective compromise were unsuccessful and, instead, the government went ahead and tried to impose the change. The unions responded with a High Court claim for breach of contract. The action was successful. The relevant part of the attendance management procedure created contractual rights and obligations (see page 44, Chapter 4) and the government was not allowed to change it without agreement, the court found.

The judge concluded that although some parts of the procedure were non-contractual this did not prevent other parts from being contractual. In particular, the trigger points for intervention were not merely guidance, as if employees fell foul them, it could lead to formal processes, written warnings and even dismissal.

The government argued that the proposed changes were not detrimental because their purpose was to help management and employees deal supportively with absence at the earliest opportunity. But the judge rejected this argument. The changes were fundamentally different and led to earlier disciplinary consequences for those affected. Any reasonable person would regard the changes as detrimental (Sparks and others v Department for Transport [2015] EWCH 181 (QB)).