Updated Acas guidance on sickness absence management

7 December 2023

On average, each employee in the UK took 5.7 days off due to sickness in 2022, according to figures published by the Office for National Statistics. The estimate of working days lost to UK employers due to sickness or injury reached a new high of 185.6 million over the course of the year.

In the ten years up to the Covid-19 pandemic, the figures for UK sickness absence were relatively stable. Increased levels of absence in the years since have presented a number of challenges to employers, including loss of productivity and increased pressure on colleagues who are covering for absent employees. If sickness absence is not managed well, employers can also be exposed to claims for disability discrimination, unfair dismissal, or personal injury.

Acas recently updated its helpful guidance on sickness absence. In this article, we highlight some key points for employers.

What is sickness?

The updated Acas guidance reminds employers to treat physical and mental health as equally important. When an employee is off work due to a mental health problem, the guidance suggests employers should consider whether their job is a contributing factor.

Fit notes

Previously called sick notes, fit notes can now be provided by a broader range of healthcare professionals than previously, including pharmacists and physiotherapists as well as doctors. Employees do not need to provide a fit note to evidence their unfitness to work until they have been unwell for seven or more consecutive calendar days. Fit notes may state that the employee is fit to do some but not all of their work tasks and can also be used to make recommendations, such as making an adjustment to a workstation.

Recording absence

Information about health is given special protection under data protection laws and should be treated as highly confidential. Nevertheless, employers need to have processes in place to monitor absence records and to respond consistently to absences.

Records should cover the number of absences, their duration, and the reasons they took place, both in relation to individuals and across the organisation. This can help employers to spot patterns within an organisation and identify any underlying causes. The guidance reminds employers that it may be necessary to record disability-related absence separately and treat this differently to sickness absence in order to avoid discriminating against disabled employees under the Equality Act 2010. If you think an employee’s absence could be related to a disability, even if the employee has not disclosed any, we suggest seeking legal advice before taking further action.

Trigger points

For employers who use ‘trigger points’ in their absence management policies, keeping accurate absence records is essential to ensuring that staff are treated consistently and fairly.

Typically, after a certain period of absence or a specific number of incidents of absence, the employee reaches a ‘trigger point’ that prompts an absence review under the policy. The review usually involves the employer discussing the absence with the employee. The employer should consider whether there is anything they can do to support the employee, such as implementing workplace adjustments, a phased return to work, or flexible working. The employer should also consider whether it is appropriate to obtain occupational health advice.

Passing trigger points under an absence management policy will gradually move an employee towards dismissal. As such, if some or all of the absence is related to disability, it may be reasonable to adjust the trigger points or to discount some or all of the disability-related absence. We suggest seeking legal advice to ensure you comply with the requirements of the Equality Act 2010 in relation to disabled employees.

Reducing sickness

The Acas guidance makes suggestions for how employers can keep absence rates down by creating a supportive work environment and culture. These include ensuring staff take breaks and holidays and training managers to spot employees with a poor work–life balance. Employees should feel confident that if they raise concerns, for example about workload, they will be taken seriously and offered support.

Return to work meetings

Return to work meetings play an important role in identifying underlying causes of absence and successfully reintegrating employees. These meetings need not be formal, but they should be held in private settings, and notes should be kept.

Return to work meetings are also an opportunity to check that an employee is well enough to be working. The Acas guidance emphasizes the importance of checking on an employee’s health at this stage to combat the phenomenon of ‘presenteeism’ whereby employees continue to work even when they are unwell. The manager conducting the meeting should check any fit notes to ensure any recommendations have been received and acted upon and, where relevant, discuss with the employee whether any support or adjustments are needed.

Homeworking and presenteeism

Presenteeism has become more common with the rise in homeworking. The Acas guidance notes the negative effects of presenteeism, which include employees taking longer to recover from illness. To combat presenteeism, employers should foster a culture in which employees do not feel pressurised to work when they are unwell. Expectations should be the same regardless of whether employees are working from home or at an office. An employer may even have to tell an employee that they are not well enough to work. If the employee disagrees and wants to carry on working, we recommend seeking legal advice. In these circumstances, you may still have to pay them their usual pay.

Dismissal

Ultimately it may be possible for an employer to fairly dismiss an employee on long-term sickness absence or who has persistent short-term absence. To minimize the risk of a claim, it is crucial that employers carefully follow a fair process and address any potential disability issues as early as possible. Having a clear and effective absence management policy, and consistently applying it, is key. At all times, managers also need to act sensitively and respond to each individual’s specific circumstances.

How we can help

Absence management can be time-consuming and challenging for managers. We can advise you in relation to the legal aspects of dealing with short- or long-term periods of absence among your personnel.

For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.