It is not uncommon to use “trigger” or “review” points into absence procedures – essentially setting a figure of absence at which the procedure is automatically “triggered” and the absence is then “reviewed”.
Review point systems are usually based on either:
- the number of absences an employee has within a certain time period; and/or
- the length of an employee's absence.
These can be very valuable and helpful – especially within a large organisation, it can promote equity ensuring:
- that everyone is subject to the same rules;
- removal of the possible subjective input of line managers;
- employees are treated equally across departments, even when different managers are involved; and
- clear parameters for employees to work within.
Pitfalls to avoid when using them
If you are going to use them, it is important to do so:
- as part of a clear Absence Management Policy – setting out what they are, what happens if they are reached; and
- the full process for review;
- whilst avoiding the application of such rules indiscriminately, for example, failing to make adjustments for disabilities, and other protected absences.
It’s very important that review or trigger points should never be accompanied by an automatic sanction – absence is a complex area with lots of different factors to be taken into account, and each decision must be made on its own facts and following a clear process.
Absence review meeting – their purpose and the common legal issues
An absence review is an opportunity for an employer to look into the cause of an employee's absence.
The employer can use it to:
- check on their well-being generally remembering your overarching obligation to ensure a safe place of work;
- discuss the reasons for their absence – to ensure you capture any wider Equality Act 2010 protected basis for absence as well as understand the issues generally; and
- importantly, see how they can support them.
It should be a positive process and can be a way to reveal underlying issues early on and perhaps stop them from becoming long-term problems.
Here are some common issues and why it is so important to get to grips with them in reviews:
- Occupational health Where there are underlying issues or ongoing problems, an early referral to occupational health provides vital information to the employer about how to deal with this. If occupational health is required, often the earlier they are used, the more effective this can be. If there is a Disability under the Equality Act 2010:
- such an assessment will be needed, without it you are at much greater risk of failing to fulfil your legal obligations and thus, create claims; and
- if there is a possibility of incapability you will need this report to help you assess all options prior to reaching such a conclusion lawfully.
- Reasonable Adjustments Pursuant to the Equality Act 2010 – if the employee has a disability within the definition in the Equality Act, the employer must consider whether reasonable adjustments can be made and if they can, make them. Failing to do so is a stand-alone claim. Often, occupational health can help with this.
- Pregnancy & Maternity Once the employer is on notice of a pregnant employee, then it is important to follow all their statutory obligations towards them, to penalise them for being absent for pregnancy or maternity-related reasons could amount to a claim for discrimination.
- Time off for dependants Does the absence in fact relate to caring or other responsibilities? If so, then it’s important to be aware of this. Sick leave should not be used as a cover for caring responsibilities, and taking action under a Sickness Absence Policy when in fact the absence was a statutory right can land the employer in a lot of problems and claims.
- Work-related Is there a work issue here which needs resolving? If there is, then it is legally incumbent on the employer to adjust their process to account for them causing/contributing to the cause of the absence.
- Flexible working Might be a solution.
- Disciplinary issues If the absence is suspected not to be genuine, then this would need to be dealt with as potential misconduct, and not under the Absence procedure.
- Accurate records The area where most employers get into trouble is in the inaccurate recording of absence. Allowing employees to take holiday and/or sick leave when that is not the case can cloud the picture and result in actions being taken which could give rise to claims, or, in the case of holiday, of allowing an employee to “mask” a problem so that it is not picked up, making the Review Process faulty and probably making the underlying issue become more significant before it’s finally dealt with.
What are review meetings NOT for?
Be wary of using these sorts of triggers or reviews as punishment or as a threat.
Employees will be much more likely to hide absences, give false reasons or come into work when seriously unwell if they feel that they will be punished or possibly dismissed if they hit a trigger point.
If the absence policy sets out all the options set out above and highlights that the conversation is looking to find a solution, then the review points can be a help to an organisation.
But if an employee feels that if they are off sick again, they will be disciplined, then they can actively hinder employment relations and store up problems for the future.