Julia Gorham, DLA Piper
Chinese New Year is just round the corner, which means many employees will either be going abroad or staying in Hong Kong to spend time with their friends and loved ones. For some businesses, sick leave abuse is particularly rife during the festive seasons. Some employees may call in ‘sick’ after the public holidays, whilst others may take sick leave before the holidays in order to finish their shopping.
When an employee is genuinely sick, granting sick leave is of course necessary and legitimate. However, the difficulty arises when there is no obvious reason for repeated absences. Typically, absences happen on a Monday or Friday, or immediately before or after a public holiday.
On average, 3.5 percent of business time is lost through sickness absence each year. The cost of absenteeism through sick leave abuse can be substantial. There are also the hidden costs of having additional cover and use of temporary labour. More importantly, it impacts upon the morale of those employees attending work.
The Legal Risks
When handling absenteeism, employers should bear in mind the following legal issues: -
- sick pay, sickness certificates and contract issues;
- disability discrimination;
- maternity rights;
- work injury rights;
- data privacy; and
- restrictions on terminating employees whilst they are on paid sickness leave or work injury leave.
Whether these issues arise will depend on whether the absence is authorised or unauthorised, short-term or long-term and whether there is any underlying medical condition giving rise to the absences.
Managing Absence in Practice
Absenteeism is either “I am really ill and cannot come back to work”, which is genuine ill-health, or “I don’t want/can’t be bothered to work” which is misconduct.
The good news is that different types of absenteeism can be tackled with an effective absence management policy.
- Absence management policy: Have a clearly defined policy, down to the procedures and setting out roles and responsibilities for employees, managers and HR officers. The purpose of the policy should be clearly explained and procedures for dealing with unacceptable absences should also be explicit.
- Information: Accurate information is the foundation for control and absence management. Systems must be introduced to provide accurate statistics and alert HR when the level of absences becomes unacceptable. The information must suit management’s needs and be timely.
- Managers’ responsibilities: Managers and HR officers will have the primary responsibility of dealing with absenteeism. Every manager should know the level and cost of absence in his department and be able to compare those figures with other departments.
- Training: Time and money should be invested in training line managers to handle this area of their responsibility. It is no good giving someone the responsibility if they do not know how to deal with it.
- Return to work interview: The return to work interview is the cornerstone of effective absence management. Consistency of treatment of staff is also key. The line manager must conduct a return to work interview with each employee whose absences have reached an unacceptable level. The purpose of the interview is to identify the reason or cause for the absences. This is not only to minimise the risks of causing legal issues, but to foster good communication with the workforce. This process should help act as a deterrent to illegitimate claims for sick leave, it should also be explained that the purpose of obtaining a medical report concerning illness is to enable proper consideration of reasonable accommodation and not to discriminate against anyone for having illnesses.
- Counselling: Personal problems outside work or in work, together with genuine concerns about health problems can cause absence. Having an employee assistance programme or a counselling facility to share a problem and be guided as to a course of action to solve it can help improve attendance.
- Discipline: Where discipline is appropriate, it should be administered fairly and consistently across all sections.
As the festive season is fast approaching, now is a good time for companies to formulate an absence management programme and communicate their absence policies to employees.