January / February 2015 – What have we seen in practice?

The start of 2015 has been interesting, as we have seen a flurry of business clients have a specific desire to deal with employee exits and particularly for absenteeism.

New Year New Start is a common mantra for individuals at this time of year and for businesses it appears no different as we have seen that business owners want to start the year with the “right staff” and remove “problems” which cause operational difficulties and additional unnecessary costs to the business.

Employee and worker absenteeism whether persistent or intermittent short-term absenteeism or long-term sickness continue to be described as a headache for business owners.

When hoping to implement the exit of an employee or worker in such circumstances, consideration needs to be given to a number of factors prior to adopting specific tactics and strategy to achieve your objective.
Important aspects for consideration include:

• Absence policies and procedures – it is advisable to have clear policies in place to avoid ambiguity and so that employees and workers are clear on the rules which is crucial when disciplining or terminating employment;

• The contract of employment – include contractual clauses in employee’s contract of employment that will work in your business’s favour including regarding sickness absence notification and sick pay.

• Preventative action – ensure it’s clear to employees and workers that all absences will be assessed and monitored. Return to work meetings can be a useful tool for ensuring this is actually implemented in practice.

• Investigations regarding the employee’s or worker’s absence – important for health and safety and for establishing and differentiating between those employees and workers who are not legitimately absent and require disciplining for their conduct and those that require further careful consideration including about their prognosis or reasonable adjustments.

• Medical reports – applications/letters to an employee or worker’s GP seeking a medical report must be carefully drafted or these can lead to allegations of unfairness and/or discrimination by an employee or worker and/or medical reports that are unhelpful as to prognosis and next steps.

• Obtaining consent from an employee – have appropriate mechanisms in your contracts of employment that allow you to have the contractual right to have an employee examined by a doctor appointed by your business rather than be restricted by employees failing to consent to approach their own GP for a medical report.

• Contact and consultation with the employee or worker – you should ensure your business is contractually entitled to contact your employee or worker when absent and that he/she is obliged to keep your business updated and attend meetings when required.

• Protection from disability discrimination – you should take advice to understand where your business may face additional risk for those employees and workers who may have protection by way of the Equality Act 2010.

With our Commercial HR & Employment law support, we can help you by advising your business on your legal position, options, process, tactics and strategy together with managing sickness absence and implementing all forms of employee exits. Contact Farleys Commercial HR & Employment law department on 0845 050 1958, alternatively please complete an online enquiry form.