Browne Jacobson LLP HR for Education Conference 2017 - 4th October Workshop 1A - Gill Martindale and Helen Badger Managing the day to day reality including effective use of an occupational health referral, getting use out of return to work and stage meetings and dismissal in cases involving a disability.

1. HR for Education 2017
Sickness absence workshop

2. Sickness absence
Effective day to day management of employee sickness
Gill Martindale, HR Consultant
Helen Badger, Partner
Join the conversation #BJ_HREd

3. We will focus on
Taking a strategic approach
Key management tools
Effective use of Occupational Health
Fair dismissals
Dealing with disability

4. Why is this an issue?
Impact on:
• Pupils outcomes
• Quality of education
• Colleagues
• Finances
• median cost in the public sector
• £789 per employee in 2015
• £835 in 2016
• £522 in 2016 of general workforce

5. There is some good news
7.6 7.5
8.5
6.3
1
3
5
7
9
2014/15 2015/16 General public
sector 2015/16
General
workforce
2015/16
Number of working teacher days lost to
sickness

6. Adopting a more strategic approach
Have a plan…
Create a healthy
working culture
Monitoring
and
reporting
Use your
policy to
take action
Focus on
wellbeing

7. Key management tools
Return to work meetings
• Most common tool to improve
attendance
• Need not be time consuming
• Part of your duty of care
• Reinforces attendance
culture message
• Identifies if hit trigger for
further action
• Evidence to support dismissal
Sickness review meetings
• As a result of hitting short
term or long term triggers
• Formal process
• Warnings issued?
• Right of appeal?
• Evidence to support dismissal

8. Return to work meetings
Welcome back
Are they fit to
resume duties?
Clarify reason for
absence
Discuss Fit Note (if
applicable)
Is absence likely to
re-occur?
Any support
required
Set expectations
for attendance
Identify any
concerns regarding
attendance
Update on any
changes in the
organisation

9. Absence meetings
Long term
• Likely date of return
• What alternatives the employee
may wish to explore:
redeployment, retirement
• OH advice where applicable
• Discuss a return to work
programme
• Reasonable adjustments?
• Warning if not able to return to
work?
Short term
• Set out the impact on pupils,
colleagues and the school
• The likelihood of further
absences
• Are changes to the job
required?
• Reasonable adjustments?
• Issue formal warning?

10. When absence becomes a problem
• Investigate the causes (and likely length of absence for
LTS)
• Obtain medical evidence
• Meet and consult with employee regarding medical
evidence and impact of absence
• Offer right to be accompanied
• Consider reasonable adjustments or alternative
employment

11. Role of occupational health
Provides advice to management
GP is the patient’s
advocate
OH should take a
more balanced view
You are entitled to follow OH advice, rather than GP’s.

12. Possible questions for OHU
1. What is their condition and its prognosis?
2. Is the absence work related?
3. What is their current fitness for work?
4. Will they be able to return to work in the foreseeable future?
5. Are they considered disabled under the Equality Act 2010?
6. If so, are there any reasonable adjustments?
7. Is there an underlying medical condition affecting attendance?
8. Is further absence likely?

13. What you should get from OHU
• Clear and actionable advice
• A response to each question you ask
• An outline of treatment in place
• Recommendations for adjustments
• Recommendations on fitness for work
• Timescales for return to work
• Other support

14. Dealing with stress
Look at the
causes, not just
the symptoms
Assess
workloads/
organisational
change/excessive
working hours
Consider
relationships
Carry out a risk
assessment
Obtain a medical
opinion from OH

15. Dealing with stress-related absences

16. Capability dismissals
Capability is one of the fair reasons for dismissal
Before any capability hearing
– Write to the employee
 Summarise absence history and medical advice
 advise that dismissal might be an outcome
 Date, time location of meeting
 Right to be accompanied
Meet with the employee
– Explain background and purpose of meeting
– Opportunity to raise and address any concerns
– Impact of employee’s absence
– Adjourn if necessary
– Always consider alternatives to dismissal
Appeal meeting

17. Avoiding employment Tribunal Claims
• Act promptly
• Know the absence policy well, and follow it consistently
• Effective Line Managers
• Keep detailed records and notes of absence
• Perform your return-to-work interviews and review
meetings
• Consider disability and as a consequence reasonable
adjustments
• Gather appropriate medical information
• Don’t pre-judge the outcome of meetings

18. Dealing with disability
Is the employee disabled?
• Is there a physical/mental impairment?
• What is the effect of the impairment on day-to-day
activities?
• Is it substantial?
• How long is the impairment likely to last?
• Is it likely to recur?

19. Employer’s duty to disabled workers
1. Direct discrimination
2. Indirect discrimination
3. Discrimination arising from a disability
4. Duty to make reasonable adjustments

20. Duty to make reasonable adjustments
• What is the provision, criterion or practice (PCP) and what is the
disadvantage?
• What can you do to remove the disadvantage?
• Is it reasonable to expect the employer to make that adjustment in order
to remove the disadvantage?
• Potential adjustments
• Auxiliary aids
• Redeployment
• Modifying trigger points in absence policy
• Modifying grievance and disciplinary procedures
• Redundancy selection
• Sick pay

21. When might disability become an issue?
• Recruitment
• OH clearance
• Pre-employment questionnaires
• Adjustments for interview processes
• Performance
• Is performance affected by the disability?
• What adjustments can be made?
• Does the employer have to accept poor performance
from a disabled employee?

22. When might disability become an issue
• Absence
• Recognising a disability
• Easier in cases of long term absence
• Always consider the possibility of underlying
conditions in short term absence cases
• Reasonable adjustments
• Dismissals due to ill health

23. Dealing with disability – a summary
• Only an ET can determine whether an employee is disabled.
• OH will guide but, if in doubt, manage the employee as if
they are disabled.
• Don’t assume the employee is not disabled unless OH say
they are.
• Duty to make reasonable adjustments is onerous – consider
all suggestions and think creatively
• If you rule out an adjustment, record your reasons
• Don’t be afraid to ask other employees to be flexible
• Tread with caution and take appropriate advice along the
way.

24. Online resources
www.brownejacobson.com/education

25. Get in touch
Helen Badger | +44 (0) 121 237 4554
helen.badger@brownejacobson.com
Please note
The information contained in these notes is based on the position at October 2017. It does,
of course, only represent a summary of the subject matter covered and is not intended to
be a substitute for detailed advice. If you would like to discuss any of the matters covered
in further detail, our team would be happy to do so.
© Browne Jacobson LLP 2017. Browne Jacobson LLP is a limited liability partnership.
Gill Martindale| +44 (0)330 045 2110
gill.martindale@brownejacobson.com