Dealing with Absence Management

Posted in : Webinar Recordings on 9 June 2021
Caroline Reidy (McEnery)
The HR Suite
Issues covered: Absence Management

In this webinar recording, Caroline Reidy, Managing Director of The HR Suite and HR and Employment Law Expert, outlines some tips for managing both short and long-term absence. This includes:
  • Absence Policy
  • Dealing with Long Term absence
  • Dealing with sporadic Short-Term Absence
  • Reasonable Accommodation

The Recording

Transcript

Scott: Good morning, everybody. My name is Scott Alexander. I'm from Legal Island. Welcome to this webinar "Dealing with Absence Management" in association with, of course, The HR Suite. You can see there is Caroline Reidy. If you're joining us for the first time or you might not know that we normally have Rolanda here. Rolanda has gone back into HR, and we do have a replacement. So it's only me for a month, and I'm sure somebody else will be back in my place. If you've been on Legal Island webinars before, you might know me. Anyway, I'm head of L&D. We have the managing director of The HR Suite who is Caroline Reidy. She is an HR and employment law expert. She is a former member of the Low Pay Commission and is also an adjudicator at the Workplace Relations Commission, a top trainer and presenter, a keynote speaker, an expert investigator, mediator, WRC education, and owner of The HR Suite. So that's what Caroline is.

And what we're going to do today is we're going to be looking at those absence things. But before we do that, the 24th and 25th of November is when the Annual Review of Employment Law will be on. Again, it's online. And in fact, this year there's going to be a third day. There's going to be an International HR Day on the 22nd of January that we're going to be doing as well. So I'm writing that program at the moment. And Caroline will, of course, be one of the speakers at the Annual Review of Employment Law in November. We just have to agree when and what the session is going to be.

So today, we're going to be looking at all things absence related. There is a question box on the right-hand side. And if you've got any questions, then you can drop them in there and I will come back and ask them at the end of Caroline's presentation. So Caroline is going to say a few words about absence. So I think at this stage, I'm going to hand over to you, Caroline, is that correct?

Caroline: Thanks, Scott Scott: And I'll come back when you're finished. There's the stuff that they do. Caroline can explain that, and I'll see y'all soon. Caroline: Okay. Thanks, Scott. Good morning, everybody. And thank you all for taking the time to join us this morning. I suppose absence is an area that's really, really topical. So we decided this morning we would zone in on the whole area of absence. And talk, I suppose in relation to kind of key areas that come up. As Scott said, I run The HR suite. And in The HR suite, we do training, we do advice around the whole area of HR. And a big part of what we do is helping managers and HR professionals navigate difficult situations like the area of absence.

Absence Policy

And I suppose the starting point, when we deal with this area, is in all scenarios, we'll nearly say, "So what does your policy say?" So when you start your question in relation to Mary or Johnny being absent, for whatever reason, a lot of times the starting point is, "What does your policy say?"

So it might be a good focus to revisit your policy as part of this morning's session if there some nuggets that you might feel that would be helpful. So your policy needs to, I suppose, be as detailed as possible. And like with most of our policies, now they sit in the staff handbook normally, and we update them in line with changing best practice, changing case law, and what's happening in the general backdrop in terms of legislation, etc. And I suppose in terms of the policy, the starting point is to look and see in keeping with your culture, in keeping with your values, in keeping with the organisation context, you draft your policy accordingly.

And some key elements that you should consider including in your policy, if you haven't already, starting with the notification procedure and process. So what is it that we need and expect from our team if they have to notify us they're going to be absent? So, again, whether that's a text, whether that's contact your manager, or whether that's contact HR, you decide basically. But the important thing is that you decide consistently in line with the team. And the consistency of that is really important because oftentimes we'll have a scenario where an employee who becomes problematic in terms of dealing with their absence, we might try and enforce something that might be in the policy but our custom and practice has been very different to the policy. So try and have consistency in your approach.

So if the notification procedure is silent on how you contact your manager, then obviously if people have been texting, for example, then that's an acceptable form of communication if that's what's been always done unless you revisit your policy and update it accordingly.

So, at any stage, you can update your policy the same as any other policies within your staff handbook once you communicate and agree and give them to staff to make sure that they're familiar and get a fair opportunity to make themselves familiar with policies. So notification is one starting point, one key area.

Next, it's important to look at the whole area of medical certs. And we know now that in keeping with GDPR, the importance of ensuring that we only ask for information that we need, and that medical data is considered to be sensitive personal data. And we have a higher obligation of keeping that data safe and secure. And also, for only retaining it as long as is necessary, and in line with the purpose that we've outlined.

So again, really important in terms of what is your process in relation to when do you require a medical cert, after how many days absent, and what is the process in relation to accepting those, etc. And that's quite a challenging area, particularly if you've somebody, as we'll deal with shortly in terms of sporadic absence, you may have a policy which says, "You need a cert after three days, five days, on your sixth day," for example. And then you might have somebody who's sporadically absent. And if that's the case, you should have a clause in your policy that allows you to require a medical cert in specific scenarios. And normally, as well, a medical cert would normally be valid for seven days, unless somebody has a long-term illness where you might accept it for longer, but normally if it was, for example, somebody who had a normal illness like the flu, etc., you would expect that the cert would be for seven days. So again, setting out the clarity in relation to that is really important.

And remember, as well, like I mentioned there, you may require certs more frequent than that. And again, the importance of when that might be. And that should only be in exceptional circumstances. It shouldn't be a case that if somebody is absent for a day, we automatically require a cert. There has to be the trust relationship that if somebody is absent, you know, that we facilitate the absence in line with normal scenarios that occur in that regard.

The other, I suppose, thing to remember is when somebody is absent, they accrue holidays for the first 15 months of their absence. So a lot more people now would manage proactively people's absence more because of that. And we'll talk more about sick pay because that's an important complementary policy that goes with your absence policy. But in the short term, I suppose, remembering that the holidays accrue for people when they're absent.

And the other thing to remember is what is your return to work process? Obviously, we currently have a COVID return to work protocol that we need to follow. So if somebody is absent, then they have to go through that COVID return to work protocol, automatically. But complementing that, have you an additional return to work form? Have you a return to work meeting? Again, all useful tools to identify and to nip issues in the bud early. So if somebody is absent to deal with work-related stress, whether somebody has an issue with a fellow colleague, etc. These are really good ways to nip that in the bud and to identify that early in terms of that return to work meeting.

The other, I suppose, area that has come up quite a lot for us and is quite challenging to manage is when the employee fails to engage when they're absent. And, again, I would recommend that you outline in your policy the importance of the employee engaging cooperatively with the company while they're on absence. Because a lot of people when they're on sick leave, for whatever reason, they may be in the middle of a grievance, they may be in the middle of a disciplinary, or they may just be absent. And when we go to engage with them, oftentimes, you will see that the person will say, "Please stop engaging with me. You're causing me additional stress and anxiety." However, the importance of engaging with them means that the problem won't go away until you help them deal with it if it's the examples that I've outlined above.

So, again, I would encourage you to outline in your policy the requirement that the employee engages with you while they're absent. And I think that's something as we talk about dealing with long-term absence and sporadic absence really helps in terms of the return process and helping get that person back to work, which is our key aim here.

So the final part of your policy that might be worth considering is your sick pay. And we know that the government are currently looking at bringing forward the statutory sick pay that is proposed because currently in Ireland there is no sick pay. You go on social welfare as part of the social welfare system if you have the required PRSI contributions but statutory sick leave is currently being introduced and being spoken about. And we will keep you updated in relation to developments in relation to that.

Again, if you have a sick pay scheme in place, what are the rules of the scheme? What behaviours may get you expelled from that scheme? So for example, if you're absent from work and you aren't submitting your sick certs, that might be a reason why you're failing to engage with the company after numerous efforts to try and engage, you may then be at risk of being expelled from the scheme.

Long-Term Absence

So you obviously in this whole area as I start now to talk about the dealing with long-term absence or short-term absence, indeed, one of the key things always we're trying to be as empathetic and as understanding and as accommodating as we can for employees because we know that during times of absence, whether that's to do with grief, whether that's to do with a family member, whether that's to do with the person being unwell themselves, we know that these are key moments in the employment journey that if we look after our employees well that an in turn we end up getting really loyal employees and their stand out examples that they give us when they talk about their companies when we do surveys, etc.

Also to complement what I've outlined in the policy is the importance of consistency. And some people would say to me, "We've no sick pay scheme, for example, in place." And I would ask, you know, "Well, have you paid anybody when they've been absent?" And they'll say, "Well, yeah. Well, we paid Johnny because, look, he was genuine. We don't want to pay Mary now because we don't think she's genuine." But again, you're making that huge assumption. And again, the objectivity piece has to be closely linked.

So, again, I would just say, remember, you're setting custom and practice in relation to how you handle these type of issues. And so that's important as we apply the policy in terms of that consistency. So in terms of dealing with long-term absence, sending somebody to the company doctor is something that's inbuilt into our absence policy. And, I suppose, for me the benefit of being an occupational health doctor adds huge weight and benefit to the process. Because normally a person's GP will give you limited information in terms of the person's ability in terms of returning to do the job. Whereas an occupational health doctor, they're trained to be in a position to assess the person's medical fitness in terms of the job that they actually do. So there's an important link in relation to ensuring you take the occupational health doctors' advice.

Sometimes also you have conflicting advice from the employee's doctor and the company doctor. And in scenarios like that, again, you need to be careful in terms of sharing data but often the employee will consent to the company doctor talking to the person's own doctor, or in exceptional circumstances you may need if agreement can't be reached to get a third doctor, which will be the one who you will agree in advance, especially the fact that hopefully they're an occupational health doctor that they will agree what's best in that scenario. But I would hope that consultation with the employee in relation to the entire process that you're going through to try and facilitate their return to work is going to be done very collaboratively and very consultatively. So as a result of that, you would hope that the employee will be trying to assist in cooperation whatever way they can.

So dealing with long-term absence, again, your policy will outline what you consider long term to be. And in some policies, it's anything more than 3 months consistently, in others, it's more than 12. So you decide what you consider to be long-term absence. And then in terms of what is required if somebody is absent for that period of time in terms of sick certs, in terms of engaging with the company, and communicating with the company. Again, it's quite difficult for the person who is on long-term absence, in terms of keeping in the loop. And many really appreciate the opportunity to be able to engage with the company while they're absent in relation to keeping them up to date of things that are going on so that they feel still connected with the company. It's also really important, I supposed, to check in to make sure that is there anything we can do as a company to try and assist that person in terms of that long-term absence.

We remind ourselves of cases like the famous Nano Nagle case and others in terms of reasonable accommodation. And for somebody who has been out long-term sick for a period of time, I would always try and as they give the fitness to return cert that we reassess as part of that return to work interview, we reassess what, if any, reasonable accommodations they feel they need in terms of facilitating their return back into the workforce. And again, hugely important in relation to how we manage that return to work process. And for somebody who has been long-term absent quite a lot could have happened during that person's absence. So, again, the debrief, the consultation, etc., the importance of that.

Short -Term Absence

I suppose, in terms of the short-term absence, there's a huge amount of reasons as to why somebody may be absent on a short-term basis. And whether that's child-minding responsibilities, whether that's the person is sick themselves, etc., and the importance of the flexibility and the facilitation of how we manage that is obviously going to be key. But on occasion, it will cause operational issues for it to be as maybe frequent as it might be occurring. And that's why when I mentioned the absence policy, the importance of being able to engage with the employee proactively explaining the operational issues that it's causing and trying to see can you do anything that can help to facilitate the person to be at work more.

And with remote working now, we have the balance of, you know, trying to manage short-term absence, the person working from home, and also that whole connectedness with the company. So, again, that's why the reporting of the absence and the checking in and the engage with the employee has never been more important. I suppose, in terms of consistency, when we start to see patterns starting to develop in terms of the employee, in terms of, you know, for example, they might be more frequent, their absence level is a lot more than everybody else. And again, in HR, we now have great ability to manage and monitor from metrics perspective, and absence will be one of those metrics that we often do measure.

Again, the importance of the paper trail is really important here. And again, you know, as we're communicating verbally with the employee, we're confirming afterwards in writing what was discussed with the employee and whether that's a simple, "Look, I'm just checking in to see how you are. You tell me that you're on the road to recovery. I'm delighted to hear that. And you know, we're here if we can do anything to support you." To somebody who may be experiencing grief where you have the opportunity of reminding them of the employee assistance program, and reminding them that you're happy to try and facilitate a blended approach of working from home and working in the office or indeed you might be able to facilitate reduction of hours, etc.

So, again, trying to work with a person where you're presenting as many options as possible. Many organisations now have the benefit of an employee assistance program and reminding people when their absence in relation to any supports you have available, including, obviously the fact that you're available to talk to them, availing of those opportunities to remind them of those supports is really important in those consultation conversations that you will be doing with the employee. And in terms of a paper trail, obviously, our hope is that the person is absent and they're planning to return in speedily enough fashion, depending on what level of illness the person is managing. And again, the empathy, the confidentiality, etc.

And again, and I would always ask the person to say, "What would you like me to tell your colleagues in relation to your absence?" Other than that without getting their consent, I would always just say, "The person is absent." So we don't and we've had a lot of breaches during the whole COVID piece where we've had a lot of employees coming back, saying, "Listen, I didn't appreciate the fact that I let you know that I had COVID, our member of family," or, you know, whatever the scenario was, and that information was passed on. So, again, whoever the person is in terms of that reporting that they understand their obligations in relation to confidentiality and in relation to GDPR.

So key elements of that people management, you know, training and focus for managers. And if they're not experienced, that might be an issue in relation to an employee's confidentiality, etc.

I suppose, as the process goes on, particularly when it's sporadic short-term absence, ensuring that you're making the employee aware of the impact of their absence. And if it's the case that it becomes worryingly so, the implication that potentially, this may go down the road of disciplinary if the person fails to engage or if the person continues to be absent. I would always caution that approach in terms of the treading very softly because when somebody is absent, the majority of people are going to be genuine, and our focus is always about helping them return. But there will be occasions when you may need to address that as part of the disciplinary process. And if it's the case, you will need to do that, you will have shown that you've gone through all the support, all of the opportunity to try and get the person back and are aware of, you know, what alternatives there are for that person. The why is always really important in these scenarios. And if we can get the why, then oftentimes, we can turn things around and get the employee back.

So again, paper trail, paper trail, paper trail. And we all now know that with the new bullying code of practice, we've even more obligation in terms of potential issues employees may raise and the importance of them understanding who the contact person in their organisation is. Because if somebody does go out on work-related stress or anxiety, etc., and there is a problem in the work environment, the importance of having that contact person available to them who can untangle and signpost them is crucially important. And remember, in line with that new bullying code of practice, your obligation is to try and contact people. And in fairness, I know organisations have been very busy over the last number of months with updating their policies and also organising training. And I know we've worked with a lot of you in relation to that.

Reasonable Accommodation

So from a reasonable accommodation perspective then, just to remind you of the very clear and high bar in relation to reasonable accommodation, and reasonable accommodation falls from the need to treat somebody who has what the legislation defines as a disability, which can be anything from a back injury to somebody who has cancer or a physical disability, etc. So the definition is quite broad. And it's important that you're clear that if somebody does come and has medical, you know, issues of any make, shape, or form that we would always try and consider, "Well, is there a need to provide reasonable accommodation here to facilitate this person to be able to return to their job?" And reasonable accommodation means that the person who has the disability gets additional reasonable accommodations to make them equal to the person who doesn't.

So reasonable accommodation can be anything from physically changing the work environment to suit the person who has a disability to changing the person's hours and changing the person's job itself. And we know again from the Nano Nagle case, which is our most, I suppose, indicative case in relation to reasonable accommodation, the importance of consultation with the employee. And we started our presentation mentioning consultation and the importance of it in relation to the whole area of HR and employment law, but particularly in relation to absence.

So if the person has a need for reasonable accommodation, you start the consultation process very early on. Again, occupational health doctor is going to advise you what that reasonable accommodation that would be required is. And once you've got your understanding, you basically try and see what you can offer the employee.

The most important thing also is in terms of the offering the employee options. And I think it's much better to be able to go back and offer options to the employee than to just come back with one solution that you feel might be the solution. But it doesn't seem to be from the employees' perspective. So options are always good and asking the employee equally to suggest options that you can consider as well.

Again, the importance of the paper trail in relation to reasonable accommodation. You're not required to create a new job for the person that didn't exist before. But you are required to make all reasonable efforts. And from Nano Nagle, we also saw that in that case the person couldn't do all the elements of the job, but she could do 11 elements of the 18. And the courts reminded us of the importance of being able to potentially try and see could the other jobs be done by distributing them to other staff members. So it's not a case that if the person can't do the entire job with reasonable accommodation that that's the obligation met. It's, again, consultation, getting the medical opinion, and offering as many options as you can. And I think reasonable accommodation is something that can be short term can be long term. But I think we're all very clear in relation to the bar that's required for us to hit in relation to that. So, again, when we're dealing with the absence conversation, again, you're trying your best to facilitate as much as you can.

So I've given you a good hopefully overview of some key considerations that would be worth revisiting in relation to your policy and also in relation to engaging with your employees. One key area that comes up a lot for us is somebody who on a long-term sick who may not be engaging, or the company haven't been, you know, active in terms of contacting the employee. Again, I would strongly recommend that you do contact the employee and try and consult with employees in relation to their absence as much as possible. And again, I would update your policy to reflect a lot of the new elements of what we've discussed around the notification process, around your medical certs, when you require them, when you may require them more often than that in relation to the practice they accrue and your leave the first 15 months in relation to the return to work process, in relation to engagement when absent, in relation to engaging with the company doctor, and the importance of the company doctor's opinion and the fact that they need to attend and also in relation to sick leaves.

And I think if you have your policy that's robust, ensure that you consistently apply it. And remember your custom and practice. And again, if you feel that the custom and practice you have in place is not in keeping with the policy you would like to have, it's important, then you do the drawing the line in the sand, which is explaining, say, "Whatever has gone heretofore, we're now introducing a new policy," or, "We're now dusting off the policy and we're actually going to use it and follow it where we may not have before."

And I think by doing that is really positively means that the employees know that they're going to be empathetically confidentially and supported during any absence. And I think this is an area that we're hearing a lot more about. There's also legislation being considered for those who are going through IVF and those who experienced a miscarriage as well as the statutory sick pay that I mentioned already. So absence and the elements of it are definitely on the agenda. And there's more change to come. And we'll keep you updated on same. So I'm going to pass you back to Scott, and we might address some of the questions, Scott, if that's okay.

Scott: We will indeed. Thank you very much, Caroline. A number of questions are coming in. Just for clarification, I was looking at the statutory sick pay rates in the UK, they're not massive. Started at the beginning of your presentation to mention that the government is . . . and Ireland is talking about bringing in possibly for next year, rather than this year, is £96.35 a week for up to 28 weeks SSP. That's has been in the UK through four years. And it's managed to get up to 96 quid. So it's not an awful lot. You know, on top of that, you know, certain people may end up getting other benefits but that's what the employer would pay. Obviously, if you've got 10 people, you're looking at about £1,000 a week. So it becomes more important as it grows.

Abscence and Travel

So we've had a number of things in there. You mentioned quite a lot of things, Caroline. A lot of them seem to tie down to trust. I think if you've got a lot of trust between employer and employee or managers, then they'll be more open about a number of things that you were chatting about. But we've got a situation here from someone who has a bit of a difficulty. They said,

"We have a staff member who has produced a certificate with no medical issue listed. He has informed his manager that he has back issues. He has also informed that he is going back to his home country for one month. And it's one month. And is certified for this time. If I request him to go through the company doctor and he declines as he is abroad, what is the situation?"

Caroline: Great question. And I suppose two points to start with. One is you're 100% right with the trust. And we started out today saying, look, the policy is in place to ensure consistency of approach, consistency of treatment, etc. And in this scenario of the question that you've asked, trust and the policy are going to be two key elements of that stool that we're going to be trying to balance. I suppose a few key points. One is what does your policy say. Most, as I say, don't accept a month sick cert because the argument is, "How can a doctor tell in a month in advance unless it's a long-term illness." But for things like back injury or back pain or whatever, you'd normally expect the person is going to the doctor more frequently. Also in your policy, you should have the option to be able to send the person to the company doctor. And again, I suppose normally, it will be a case of getting the company doctor who is an occupational health doctor to assess the person's fitness in terms of ability to do the job.

And also in terms of the person going abroad, they may be saying they're going abroad for medical treatment. And I don't know the detail of the case. But a few key steps that I would start with is I would engage with the employee, I would remind them of the policy, I would require them to go to the company doctor, and then I would require them to do a meeting to go through the detail of what the company doctor has said. Because obviously if the person has back injury, we'll need a cert before the person returns to confirm their fitness for return. And then we'll also need to do a risk assessments to risk assess if there is any reasonable accommodations we need to revisit now the person has told us that they have a back injury depending on what occupational health highlight in that report.

And again, the paper trail, the paper trail, paper trail, there's been a huge amount of employers who manual handling is obviously a legal obligation that you need to do. And again, making sure that you have your manual handling up to date. That, you know, you have considered the ergonomic elements of people working remotely. Again, you can do that risk assessment remotely. You know, there's a lot of vicarious liability, i.e., responsibility we as employers need to take to ensure that we're meeting our statutory and legal obligations, you know, and ensuring that you've done all of that means that, you know, then you can try and proactively engage with our person to try to get them back. But I will definitely be doing the engagement before and, you know, outlining the position, you know that you're in because that's quite a difficult scenario for that person to be in.

Scott: Yeah. I suppose one of the messages that came across loud and clear is there's no real quick answer to getting rid of people. I've seen it so often with employers, but I was reading today about a case in England where the employer sacked the guy because he was often sick and he was smoking outside a pub. And the tribunal over there said, like, "Just because he's sick doesn't mean you say he can't go to the pub." And similarly, this person here, just because you're sick doesn't mean to say you can't go to wherever it is somewhere in Europe, presumably. But your point, you can do, and there have been many occupational health assessments remotely. Now it's a lot more difficult if you have back problems, I suppose. But you could certainly utilise that.

But your point is if you keep the record, if somebody here says, "I'm not going to occupational health, I'm not in the country," you would still record of trying to go into occupational health. They've left the jurisdiction. they didn't inform us. They've disappeared. We've tried to bring them on. And that paper trail then says, "We're trying to be reasonable as employers and this person is just blocking me every time." But it does come down to…

Caroline: It does. But I suppose another kind of add-on to that as well is like, you know, sometimes people will request a month holidays and the company may not be able to facilitate the month holidays using that as an example. And the person tells the colleagues, "Well, I'm still going on holidays. I'm sure I'll get a cert or whatever." Obviously, that's not going to cover the person's absence. So because you're, again, you're allowed, I suppose, and it's necessary on the basis of, you know, the colleagues. I mean, in HR, we're all about making sure that there's trust and the culture is born of trust and positivity. But like there's always one, you know, issue and then we have to rely on the policy, that consistency, etc., in terms of managing that. So just because somebody has a cert doesn't give them that untouchableness.

It means that we can still go back and say, "Look, Caroline, you requested a month holidays. We said you couldn't have us. And therefore, you know, we're now engaging with you on the basis that you've submitted a cert for a month, you know, which isn't it obviously acceptable." So again, I wouldn't just because somebody has a cert is not like, giving them that untouchable status. Because, again, as I say, you're conscious of the colleagues who are basically saying, "Oh, look, Caroline is actually getting away with that. That's so unfair." However, that's 99.9% of people are going to be legitimate, there's going to be no issue, etc. It's the point 0.001 that we're always are unfortunately zoning in on.

Abscense and the Disciplinary Process

Scott: Okay. There's another question here.

"What is your position around invoking the disciplinary policy when an employee is long-term absent 16 months, in this case, and has been deemed fit to return to work by occupational health, and they've simply stopped communicating with the company altogether?"

Caroline: I think that's a typical scenario where you're now going down the road of breach of contract. And again, the better your policies are the more watertight your approach is going to be. And again, because somebody has been long-term sick, again, the benefit of having had that independent occupational health assessment is crucial. Unusual that they went to the company doctor, yet, then there's been no engagement at all since. Normally they wouldn't go to the company doctor if they weren't going to engage.

I would be writing to the person. And again, email is your best time and date stamped record in terms of that communication. And in terms of writing to the person, get it registered. If the emails are bouncing back, etc., then try and do registered posts or communicate with the person to explain that, look, you know, they're not meeting their contractual obligations in terms of handing in sick certs, etc. On top of that, the doctor has deemed them fit, but now they're on absence without authorisation. And they're putting their job at risk, because ultimately, this will result in going down the disciplinary process. And again, you're giving them the heads up of what are the risks.

And again, you know, like, I'm always like a broken record about the importance of your policies, but you can't underestimate the importance of policies in relation to this process. You know, because ultimately, it's, "Do I as the employee know, the consequences of if I go down this road, what could potentially happen?" So what we don't want to employees saying, "Well, I never knew that there could be any chance of there being an issue, you know, in relation to that." So, again, trying to make sure that the employee is really fully aware. And again, you're starting the engagement process. I would send a number of letters to that person. Not just one. And I would encourage them to engage in the investigation process. I would also remind them of the employee assistance program just in case they're going through something we don't know about as well.

Scott: There's always a lot of cases and you see all the time in the WRC cases where employers end up losing patience. And that's one of the problems that they end up having in this process.

Length of Absence 

There's another couple of ones here. We'll finish in five minutes, folks. "Is it reasonable to consider . . . " I'll take these two together.

"Is it reasonable to consider one month continuous absence as long term?" So how long is a piece of string on that one. And another piece of string question, "In the case of long-term options, how long should the company be expected to hold the job open?"

Caroline: So how long is long is up to you. And normally, the only difference is what is the level of engagement, you know, or what is the process that you're asking the employee to follow that will be different to sporadic or short-term absence? So if you decide it's a month, then that's perfectly fine for you to decide. So what the next question automatically is but what's different then? Normally what it means is that you might be saying that, "Look, we would appreciate the opportunity to engage with you. We would need the opportunity to send you to the company doctor, get an assessment of your likely return to work, etc." So normally, it's those types of things. But as I mentioned, when I was talking at the start, I would also normally put in the policy that we may, for example, for specific reasons require you to go to the company doctor sooner or require you to submit certs more frequently so give yourself that option.

Because in scenarios like that where there is not much engagement, particularly when it's a long-term absence, that can be really challenging. In terms of how long to keep the job open, I think you . . . each case turns on its own facts in relation to absence. So like, you'd be trying to identify what is the reason for the person's absence? So, for example, if somebody is going through chemo for cancer, you will be expected to keep the job open for the length of time it's going to take the person to recover. Whereas if the person has an injury with their leg and they were in a different country and they weren't engaging, you know, you're going to be potentially in a position to facilitate reasonable accommodation for that person, and they may be in a position to come back sooner, etc.

So I would say I wouldn't be ever putting a deadline on, you know, when can you start a disciplinary in relation to long-term absence? I think you have to evaluate each case on its own facts and ensure that you've done what, which is the most important thing in HR, reasonableness and that concept of being fair and reasonable. Because we expect the employee to be fair and reasonable with us with vice versa, we're committing to be fair and reasonable with them.

So the policy is hugely important in all the questions that have come up there, Scott. And I think, you know, it's a really good starting point for people to review the policy and say, "Right, is there anything that has come up in today's session that would encourage you to revisit your policy?" Understanding that 99.9% of people, as we said, there's going to be trust, there's going to be no issue, but your policy is for when there is an issue. And it's ensuring that it's consistent outside of that and that return to work piece and that engagement piece are two elements that I think we place a lot of weight on because when we can't get the person to engage, etc., that's where it becomes really problematic.

Scott: Okay. We'll take one last question, and it says something there about COVID, and so on. I took both my vaccine so I'm not old. And I'm more than happy to share my personal information with many people. Whereas I don't post anything on Facebook, and many other people would share lots of personal information in that way. But when it comes to health, the fact that some people aren't vaccinated, is a health and safety issue within the workplace and the DDSE staff or HSE were advised that they should be risk assessing non-vaccinated staff. It was reported earlier than this week. This question is the final question and we'll finish, folks.

"Instead of saying a person is absent, is it okay to say the person is on leave? We have many forms of short- and long-term leave both paid and unpaid in our organisation."

So you mentioned that you've had lots of cases where people said, "Oh, you shouldn't say I had COVID." In Legal Island like everybody knows what somebody is off for because we're all very open about it. Because it means you can help someone if you know that somebody has got MS or they've got Crohn's or whatever. Well, if you don't know, then you're not going to be sympathetic. So we're much more open in our organisation. Others aren't. So these organisations that aren't as open about their situation and don't share as much with colleagues is it is one way around just to say they're off and just ignore. It seems a strange way to do things to my head but I can understand why some organisations are different, you know?

Caroline: Yeah, absolutely. And again, I suppose I'd always be guided by the employee in that regard. So like I would always say, you know, "You tell us what you'd like us to communicate and we communicate on that basis." And normally, I would say the person's on leave, you know, because absence is obviously a different form of leave that brings its own connotations with it. So I would say the person is on leave, and then it's up to like, people, by their curiosity, etc., as you rightly said, I think it's respecting the person's, you know, position in terms of what they want said and what they don't want said. Like scenarios like a grief particularly, Scott, where somebody either is saying, "Look, I'd actually prefer not to tell the customers in relation to the fact that someone belong to me has died, for example, or should you?"

So, again, I always give the employee the option of making that choice. Because for us to communicate that information, I don't think is appropriate unless the person has given us authorisation. Same applies for leave, really, and this whole area of absence. I think you're better off saying the person is on leave and leave it at that. And unless the person wants anything different to that communicated.

And for one person they might be, you know, happy for, you know, as you say, to have their personal information discussed. For others, it's a big source of grievance. And it's an area that there might be no mal intent by the manager, which is often the person who's dealing with this rather than necessarily HR and the manager means no bad intent but unfortunately it can create a lot of upset.

It's an area to tread carefully on, particularly as well, you know, people are emotive, you know, when there's an absence, etc. You know, there's a lot of balls in the air and the employee assistance programs are a great avenue. And I think we forget sometimes to signpost people to them. And again, offering that support and offering that help I think is really important. Because sometimes, as you rightly said, you know, there are things you can do to support that person if you are in a position but has to be guided by the employee as well.

Scott: Okay, thank you very much to Caroline Reidy from The HR Suite and for all your questions. If we didn't get through them, we'll try and collate them and do something with them. Caroline writes regular updates for us at Legal Island and does stuff on her own website, too. And there are Caroline details in front of you.

Our next webinar is next week. I'm back and it is all about the Annual Review. Don't forget about that coming up. Our next webinar that we've got is . . . that's on the 24th. The next webinar is on the 18th, I believe. It's next week. I'm hoping I'm going to see a little slide popping up. Maybe I'm not. Maybe I'm not. There you go. There it is. Thank you for listening, 18th of June, next week. "Flexible and Family Friendly Working and What does best practice look like?" I'm there with all Oliver from Bright Horizons. So see you next Friday if that's okay, folks.

Thanks, Caroline. We will see you soon.

Caroline: My pleasure. Scott: And, everyone, thank you very much for listening. And we'll be in touch. Thank you. It's been recorded. So if you're a subscriber, you'll be able to listen back and I believe it's being turn into a podcast at the usual places that you get your podcasts. Okay. Thanks, everyone. Thanks, Caroline. Bye-bye. Caroline: Thank you. Bye.

This article is correct at 09/06/2021
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Caroline Reidy (McEnery)
The HR Suite

The main content of this article was provided by Caroline Reidy (McEnery). Contact telephone number is +353 66 710 2887 / +353 86 775 2064 or email info@thehrsuite.com

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