Employee absence, whether due to illness or other reasons, is an inevitable part of being an employer.
Most employees have a good work ethic and will want to return to work as quickly as possible. Equally, most employers will look to be sympathetic and supportive when employees have absences for justifiable reasons.
However, absence from work remains a leading cause of disputes between employers and their employees as well as costing UK business in terms of productivity and profit. Developing a clear, consistent and supportive policy to manage employee absence is fundamental to successful business outcomes.
Reasons for employee absence
Under UK law, employees have the right to take time off work for a number of reasons, including sickness and annual leave. For these legitimate causes of absence from the workplace, employers will usually have a responsibility to pay the employee for some or all of the time they are off, such as under the Statutory Sick Pay (SSP), holiday pay, and Statutory Maternity or Paternity Pay (SMP) rules. Employers must ensure they understand their responsibilities regarding employee pay for legitimate employee time off work.
Additional circumstances in which employees have the right to take time off work include:
- Parental leave, including maternity leave, time off for anti-natal care, paternity leave and adoption leave
- Time off for dependants and family
- Time off to fulfil duties as a Trade Union official, learning representative, or to participate in Trade Union activities
- Time off to fulfil duties as a pension fund trustee, employee representative, health and safety representative, or to accompany a colleague to a disciplinary or grievance hearing
- Time off while suspended
- If the employee has been given notice of redundancy, time off to seek new work
- Time off to fulfil duties resultant of being a member of, or candidate for membership of, a European works council
- For 16/17-year olds time off to study for specific educational qualifications
- If the employee is a Justice of the Peace or member of a local authority they can take time off to perform specific public duties associated with their position
In addition, should an employee be called up for jury service they must be given time off to do so. Although there is no law specifying time off for this reason, the employee must serve or be held in contempt of court. By default, this means they must be granted the time off, as penalising an employee for this reason alone could result in cases of unfair dismissal.
As a company you have to operate to these legal requirements, as a minimum. You may decide to grant absence beyond these legal minimum requirements or in additional circumstances, perhaps as part of your employee benefit scheme. You may also have rules on allowing unpaid time off work. In all instances, you should have clear policies explaining your approach to employee absence, including what their entitlements are and what is expected of the employee.
Managing employee absence
While employee absences arise from a wide range of reasons, for employers, minimising the frequency and impact of these absences is essential for business operations.
Establishing an effective monitoring system is fundamental. Whether a company relies upon HR personnel or an automated system, it is essential that an absence monitoring system is in place which keeps track of employee absences, their causes, and flags patterns and abnormalities such as frequent absence on particular days of the week, or at certain times of year, or frequent or long-term sickness.
Employers should also have in place a clear company policy regarding absence which outlines the circumstances in which an employee is entitled to absence, as well as the protocol they must follow to notify their employer of their absence.
Key features of the policy should include:
- Who to contact and when: Employees must be aware of what lines of communication are available to inform the company of their absence. Whether this is an automated system they need to log into, and email to their line manager, or a phone call to HR.
- Deadlines: What the employee needs to do and by when. For example, by what time they need to inform the company of their absence and reason.
- Company policy: Although there are legal national requirements such as SSP, each business will have its own policy regarding sick pay, acceptable reasons for absence in addition to legal minimums, annual leave and holidays in excess of legal minimum, etc
- Evidence: What evidence – if any – the employee needs to provide in order to take authorised absence.
- Return to work process and company support systems: Given that employees are increasingly off for stress or taking prolonged periods of time of work, it is essential that there is an effective HR policy for managing return to work and offering support to try and avoid absence, for example due to stress, in the first place.
Importantly, the policy should allow for absences to be identified as authorised or unauthorised, and for the necessary steps to be taken to deal with the absence as appropriate. For example, where there are concerns about malingering and ‘pulling sickies’, the employer will need evidence before considering taking disciplinary action.
Failure to clearly sate the circumstances, requirements, and support available for employees, particularly if absences result in cases of dismissal, can result in disputes with the employee, including grievances and potentially tribunal claims.
It is also critical to provide training to all line managers and supervisors to ensure correct and consistent application of the absence policy. For example, where manager discretion is permitted in circumstances such as compassionate leave, managers should treat all team members fairly to avoid complaints and creating workplace tensions.
Given the many reasons that an employee can reasonably take absence from work, it is advisable to seek legal advice to ensure that company policy supports lawful and effective absence management.
Employee absence due to sickness
Illness, both acute and ongoing, is a leading cause of employee absence and one which needs to be carefully managed. Your HR absence monitoring system should flag up instances of consistent or prolonged absence as well as having in place a support system for return to work. Employees are encouraged to maintain contact with employees absent due to illness in order to continue monitoring their health and offer support. However, employees must not be under pressure to return and communication should only be within what is considered “reasonable”.
Short term sickness absence
Employees who have been ill for less than seven can self-certify and do not have to provide a sick note to justify their absence from the workplace. After 7 consecutive days of absence they must provide a Dr’s note stating their fitness for work.
Once employees exceed 4 consecutive days of work due to sickness, they may be entitled to sick pay. This may be Statutory Sick Pay (SSP), which is the legal minimum requirement, or they may be contractually entitled to receive occupational sick pay, if their employer provides such a scheme.
The company can also set out in its policy the notice period by which an employee must inform the company of their absence and the reason for it.
Long term sickness absence
If an employee is absent for seven or more days, they are required to provide a fitness for work note from an appropriate medical professional. You as the employer have the responsibility to request this if the employee does not provide it automatically.
Employers also have responsibilities regarding sick pay for the employee during prolonged periods of sickness.
The minimum requirement will be to pay SSP in line with the national legal criteria, although individual companies may benefit from having their own, more generous occupational sick pay packages.
In cases of long term sickness, a company should also have in place a system for gradual return to work, for example taking just a few days a week initially, and offering additional support such as flexible working hours or reduced responsibilities. Where the employee has a qualifying disability under the Equality Act, the employer is legally required to make reasonable adjustments to support the employee’s return to work.
It is essential that employees who have had prolonged sickness are engaged with positively to help make the transition back into the work place as smooth and successful as possible.
Absence due to mental health issues
When managing the mental health of employees, managers and employers should seek to support employees sufficiently to avoid absence. For employees with depression or stress, particularly work-related stress, early intervention providing support can avoid the need for the employee to take time of work.
Even if time off work is needed, supportive measures can reduce the time an employee is absent due to mental health issues and ensure their return to work is as smooth as possible. Meeting with employees who suffer from mental health issues is an important employer responsibility, as is discussing flexible working options, reducing hours, and making adaptations to the employees’ role and responsibilities.
Employers should discuss with the affected employee what they require to continue working, take time off, or return to work.
Should employees take time off due to mental illness lasting longer than 7 consecutive days they will still require a fitness for work note from their GP.
Employees who are off work for mental health issues do qualify for sick pay, SSP or occupational, in line with other forms of illness.
Absence due to holidays
Holidays are a form of absenteeism which, if handled correctly, can be the most predictable and easy to manage. Companies should have in place a clear HR policy, either manual or automated, which allows employees to request holiday in line with the notice period and stipulations outlined in their contract.
Under the Working Time Regulations and supporting industry specific regulation, a full-time employee who has been under the company’s’ employment for a year or more is entitled to a minimum of 5.6 weeks of holiday a year. Employees who are part time or new to the company have a smaller, pro rata minimum allowance, while individual companies may offer additional holiday to entice candidates or improve employee morale and loyalty.
The employer does have some discretion in regulating how and when this holiday is taken. Any stipulations the employer wishes to make regarding how and when the employee uses their holiday days should be written into the employment contract and reflected in the absence policy and absence management system.
Stipulations you may wish to make include:
- The amount of notice required
- The maximum amount of holiday which can be taken in one instance
- Whether holiday can be “carried over” into the next year
- Reasons why holiday may be denied or changed
To most successfully manage employee holidays, businesses should implement a holiday management system that can co-ordinate employee holidays to avoid periods where particular teams are left short staffed, multiple managers are away at once, employees are away at critical periods, and so on. The system must also ensure employees do take their legal minimum holiday requirements, as failure to do so could lead to fines or disputes with the employee.
Employee absence: When and why to seek legal advice
Failure to monitor absences or provide a clear policy for reporting and authorising time off work can lead to loss of productivity and less company profitability. At its worst it can also lead to employee disputes and even court cases over lack of support or unfair dismissal.
Employers need to ensure they meet the legal minimum requirements for statutory pay, such as maternity leave, and are able to manage employee absence in a way that minimises its’ impact on the business.
Seeking legal advice, both when forming company policy and facing absence abnormalities or disputes, is the best way to ensure that your company manages absences legally and successfully.
Employee absence FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
