How to write a radical sickness policy
We are all unwell from time-to-time and will need to take periods of sick leave. For some of us who live with disabilities or long-term health conditions, we may require additional support from our organisations to help us in our roles.
We are all unwell from time-to-time and will need to take periods of sick leave. For some of us who live with disabilities or long-term health conditions, we may require additional support from our organisations to help us in our roles.
Capitalism requires that employees are productive at all times – being unwell and taking time away from work reduces our productivity and in mainstream corporate culture, this reduces our value as workers. We live in a society that for the most part devalues people with disabilities, stigmatises mental health conditions, and reinforces an individualistic message that the higher out level of input, the harder we work, the greater the rewards will be in terms of income and career success. This doctrine of productivity unfortunately shows up even in some more progressive workplaces, where being physically and mentally capable of doing the job without illness is a prized attribute. Despite the Equality Act and requirements for employers to make reasonable adjustments, statistics show that people with disabilities are considerably less likely to be in work than non-disabled people, and they continue to face unacceptable barriers to finding and remaining in employment. And by extension any longer-term health issues or repeated episodes of short-term sickness are generally treated as a problem, an inconvenience to workplaces that don’t have time to accommodate people with disabilities or other health needs. At its worst the individualist position sees illness as weakness or lack of effort to stay physically fit and mentally healthy.
For most of us in more progressive organisations we recognise that reality doesn’t really work like that. Many people are born into structural disadvantage facing multiple deprivations including poverty, which can have a tangible impact on their health and wellbeing. Many others experience trauma that has a lasting impact on their lives, and we recognise that otherwise fit and healthy people develop serious and sometimes life changing illnesses too. We understand that people with disabilities, and those with health problems that impact their lives (even if they fall below the threshold of officially counting as a disability), have just as much value in our organisations, and we actively want to tackle the barriers to equal access to employment and participation.
At the time of writing this guide (September 2022), the cost of living crisis, spiralling inflation, lack of access to affordable housing (or any housing), make the challenges of creating and sustaining employment relationships for people with more complex needs more important than ever. It should be a big decision to decide to end someone’s employment on the basis of ill health.
We will always have to balance the desire to support each other during periods of ill health with the ability of the organisation to sustain itself – will we be able to afford it if we offer generous longer-term sick pay, and several people need to access it at once? How can we create policies that reflect our values of solidarity and equity if our financial and operational constraints prevent us from doing everything we’d ideally like to do? While we recognise it may be impossible for our organisations to pay full salary to people on sick leave over an extended period or to hold someone’s role open indefinitely, we can make a commitment to support one another to the best of our ability and be flexible in finding solutions. Our guide to writing a radical sickness policy aims to do just that.
Why do we need a sickness policy?
We need a policy in place that sets out what the procedure is for letting people know if we can’t make it into work, what our entitlement is to sick pay, and details of what support is available if we may be away from work for some time. We also need to know what the process will be if we are unable to return to work, or experience regular episodes of sickness absence, and our role may be at risk.
Whether we have long term health problems or just experience occasional bouts of ill health, we all need to know what’s expected of us, and what we can expect of our organisation.
What does the law say?
Under the Employment Rights Act 1996, there are five potentially fair reasons why an employer may choose to dismiss an employee. It is important to note that protection from unfair dismissal usually only applies to employees with two years of service (exceptions are made for automatically unfair dismissals, such as dismissal for pregnancy or whistleblowing, which apply from the start of the employment relationship).
The first of these five potentially fair reasons is capability, i.e. the ability to do the job. This divides into two parts, performance issues at work and capability due to ill health and absence. A fair dismissal can be for long term sickness absence or for repeated short-term sickness absence.
Whether a capability dismissal is fair will very much depend on the specific circumstances of the organisation and of the individual concerned. The law is concerned with the reasonableness of the actions of the employer, and what is reasonable for one organisation will not necessarily be so for another. An employment tribunal would take the size and resources of the organisation into account in the event of legal action. From an equity perspective, those of us in progressive organisations will always aim to be acting beyond the minimum threshold of ‘reasonable’ under the law. Later in the guide we suggest ideas for how to do so.
In the case of long-term sickness absence, generally the circumstances are determined through three key questions:
1. Whether the employer could reasonably be expected to wait and if so, for how much longer?
2. Whether the employee has been properly consulted and their views taken into account (and balanced against any medical consultation)
3. Whether reasonable steps have been taken to discover the medical diagnosis and prognosis
In the case of repeated short-term sickness absences, an employer is expected to review the pattern of absences and ask the employee the reason for them. They should follow a fair process under an absence review policy, which operates like the stages in a standard disciplinary procedure. If the full procedure is followed and there is no improvement in attendance by the final stage, dismissal is likely to be reasonable.
Whether dealing with long term absence or repeated short-term absence, the law requires the employer to take reasonable steps to ascertain the medical position. If medical evidence is ambiguous, the employer should always seek clarification from a second Occupational Health Assessment, or via a GP or specialist report, depending on what would be appropriate in any particular case. The aim is to understand the likelihood of the employee being able to return to work or reduce short-term absences. If medical evidence shows it’s unlikely that an employee will be able to return in the near future or is likely to continue needing frequent periods of absence, an employer will usually be acting fairly if they decide to end the employment contract.
As well as seeking appropriate medical evidence, employers are also required to consider reasonable adjustments to roles or working conditions, and any alternative employment options before moving to dismissal. The process followed to consult the employee, obtain evidence, consider adjustments and alternative roles will also need to be fair. A capability dismissal will be held to the same standards of fairness as a disciplinary procedure, as set out in the Acas Code of Practice on disciplinary and grievance procedures. Please see our guide to writing a radical disciplinary procedure for more information about this.
Automatically Unfair Dismissals
The Employment Rights Act 1996 offers additional protections for new parents, any dismissal relating to the following will be automatically unfair:
- relating to pregnancy, childbirth, or maternity
- relating to compulsory, ordinary, or additional maternity leave
- relating to ordinary or additional adoption leave
- relating to paternity or parental leave
The Equality Act 2010 makes it unlawful for anyone with a protected characteristic to be discriminated against at work. There are nine protected characteristics:
- gender reassignment
- being married or in a civil partnership
- being pregnant or on maternity leave
- race including colour, nationality, ethnic or national origin
- religion or belief
- sexual orientation
For the purposes of writing a sickness policy, we need to be particularly mindful of disability discrimination. It will be important to make sure anyone with a disability is not treated less favourably than other employees, or indirectly discriminated against through a policy that doesn’t take sufficient notice of any unfair disadvantage that may arise. For example, a policy that sets a specific number of short-term absences as a trigger for disciplinary action may unfairly discriminate against those with disabilities who need regular time away to attend medical appointments.
Discrimination can come in any of the following forms:
* Direct discrimination – treating someone with a protected characteristic less favourably than others (For example, if you are disciplined for something at work that you know other people haven’t faced any consequences for, this could be direct discrimination.)
* Indirect discrimination – putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage. Indirect discrimination can be harder to demonstrate, because it is not directed against a specific person. It is also possible that indirect discrimination is occurring, but that an employer is able to justify it as ‘a proportionate means to meet a legitimate aim’ for their business to operate. (An example of indirect discrimination is a requirement to work full time, which could indirectly discriminate against people with disabilities, or women [who are more likely to have childcare responsibilities].)
* Harassment – unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them (For example, insulting comments or jokes that make you feel uncomfortable and intimidated.)
* Victimisation – treating someone unfairly because they’ve complained about discrimination or harassment (For example, if you’re selected for redundancy shortly after complaining about discrimination at work.)
Disability is defined as “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.”
- Substantial means it must have more than a minor or trivial effect
- Long-term means 12 months or more or likely to last for 12 months or more
The Equality Act does not define what is to be regarded as a ‘normal day- to-day activity’, but many general work-related activities are likely to fall within this. For example, interacting with colleagues, following instructions, using a computer, driving, preparing written documents, and keeping to a timetable or a shift pattern.
Certain conditions automatically meet the disability definition under the Equality Act 2010 from the day of diagnosis – these are HIV infection, cancer or multiple sclerosis. People with progressive conditions can also be classed as disabled, as set out in special conditions in the Equality Act. This would be determined based on the likelihood of a substantial adverse effect resulting from the condition in the future.
The onus will always be on the employer, and not the employee, to determine what reasonable adjustments should be put in place. Even if the employee says they don’t need anything or they are unable to suggest anything that could be done, it will not relieve the employer of their obligation.
When it comes to making reasonable adjustments, we can always do more than the baseline definition of reasonable, and collectively work out what approach we can take to support someone with a disability to play a full role in our organisation, and include this in our policy.
Employers must make reasonable adjustments to make sure workers with disabilities, or physical or mental health conditions, are not substantially disadvantaged when doing their jobs. This applies to all workers, including trainees, apprentices, contract workers and business partners.
When it comes to making reasonable adjustments, we can always do more than the baseline definition of reasonable, and collectively work out what approach we can take to support someone with a disability to play a full role in our organisation, and include this in our policy
Reasonable adjustments include:
* doing things another way, such as allowing someone with social anxiety disorder to have their own desk instead of hot-desking
* making physical changes to the workplace, like installing a ramp for a wheelchair user or an audio-visual fire alarm for a deaf person
* letting a disabled person work somewhere else, such as on the ground floor for a wheelchair user
* changing their equipment, for instance providing a special keyboard if they have arthritis
* allowing employees who become disabled to make a phased return to work, including flexible hours or part-time working
* offering employees training opportunities, recreation and refreshment facilities
Employers should also make reasonable adjustments to ensure that employees with disabilities are supported with:
* dismissal or redundancy
* discipline and grievances
* making sure the workplace has the right facilities and equipment for disabled workers
* promotion, transfer and training opportunities
* terms of employment, including pay
* work-related benefits like access to recreation or refreshment facilities
The UK General Data Protection Regulation (UK GDPR) sets out the key principles, rights and obligations for most processing of personal data in the UK. Under UK GDPR any data relating to the physical or mental health of an individual falls under ‘special category data’ and there are limited circumstances in which an employer can access and process it. General guidelines are as follows:
- An employer should only gather information that is strictly necessary, e.g. information in a medical report on an employee struggling with ill health should be limited to information required to establish fitness to work.
- An employer must make it clear to an employee why they need the information.
- Any health data collected must only be used for the purpose stated i.e. to determine fitness for work.
- Employees should be told that they have the right to access the details their employer holds about them.
- Special category data should not be shared within the organisation and must be stored securely.
- Interpretation of medical information should only be carried out by a suitably qualified health professional.
- Details should only be kept for as long as the information is needed.
Access to Medical Reports Act 1988 (AMRA)
AMRA sets out the process that must be followed to access medical reports from any medical professional who is or has been responsible for the clinical care (examination, investigation or diagnosis for any health condition) of an employee. Many employment contracts contain a clause relating to medical reports – this is not sufficient for a report from anyone involved with the employee’s ongoing clinical care such as a GP where AMRA rights apply. Express consent must be requested before an application is made. Consent via contract is also highly unlikely to be sufficient for an Occupational Health Assessment.
What are our legal rights as employees?
We have the right to take time off if we are unwell (not fit for work).
If we meet the qualifying criteria, we are entitled to receive statutory sick pay (SSP) from our employer.
|Statutory Sick Pay|
To qualify for Statutory Sick Pay (SSP) you must:
* be classed as an employee and have done some work for your employer
* earn an average of at least £123 per week#
* have been ill for at least 4 days in a row (including non-working days)
The current rate is £99.35 a week.
You can get SSP from the fourth day you’re off sick. If you’re eligible, you’ll be paid SSP for all the days you’re off sick that you normally would have worked, except for the first 3.
SSP is payable for up to 28 weeks.
You’ll only be paid SSP for the first 3 working days you are off sick if:
* you received SSP within the last 8 weeks, and
* that already included a 3-day waiting period before you were paid SSP.
You cannot count a day as a sick day for SSP purposes if you worked for a minute or more before going home sick.
Employers may of course choose to offer a more generous amount of sick pay, with payments starting from the first day of illness, and no disqualification based on working for a minute or more.
We have the right to accrue annual leave when we are away from work during periods of sickness absence. Where sickness absence means there hasn’t been sufficient opportunity to take full annual leave entitlement in any given year, we have the right to carry forward at least 4 weeks of untaken statutory leave entitlement for up to 18 months. We can choose to take paid annual leave during sickness absence if we want to do so (for example if our SSP has ended), but we cannot be forced to use it. See our guide to writing a radical holiday policy for more details.
Under the Access to Medical Reports Act 1988 (AMRA), if a medical report is requested from our GP or any medical professional who is or has been responsible for our clinical care (examination, investigation or diagnosis for any health condition), we have the following rights:
- The right to refuse to consent to our employer applying for a medical report
- If we do consent, the right to see the report first
- Once we have the report, the right to refuse to allow it to be passed on to our employer
AMRA rights do not usually apply to one-off reports prepared by Occupational Health specialists because they will be prepared by someone who is not responsible for our clinical care under the definition above.
In the event we do not attend an OH assessment or choose to withhold our consent for a medical report to be released, our employer has the right to make a decision without relevant medical information, which could be to our detriment.
We have the right not to be dismissed for health-related absence until a fair procedure has been followed. Employers must:
- consider options to support a return to work – such as flexible or part-time hours, offering different or less stressful work (with training if necessary)
- consult with us about our health issues and when we could return to work
If we do not feel we have been treated fairly, we may be able to seek legal redress through an employment tribunal. If a health-related dismissal relates to a disability or pregnancy we have a day-one right to bring a discrimination claim. Otherwise we will need two years service before we can bring a claim for unfair dismissal.
If our health condition qualifies as a disability, employers must consider reasonable adjustments before moving to dismissal. If they do not do this, we may have grounds to bring an employment tribunal claim against them for disability discrimination.
What are our legal rights as employers?
We have the right to require a fit note or AHP Health and Work Report for any employee who has taken sick leave and been ill for more than 7 days in a row (including non working days e.g. weekends and bank holidays).
We have the right to request medical reports, such as asking an employee to attend an Occupational Health Assessment, to make sure we have the evidence to help make decisions about how to support them.
In the event the employee does not attend a medical assessment or chooses to withhold their consent for a medical report to be released, we may have the right to make a decision without relevant medical information, which could be to their detriment.
We have the right to dismiss an employee on the grounds of capability, i.e. the ability to do their job, as long as we have followed a fair process and acted reasonably throughout.
What’s wrong with standard sickness policies?
The standard approach in many organisations is to include:
- the procedure for letting the organisation know you can’t attend work;
- sick pay entitlement; and
- the process by which someone can be ‘fairly’ managed out of their job if they become unwell over an extended period.
In some organisations, sickness policies include thresholds for triggering disciplinary action, e.g. if an employee has more than two instances of sick leave in a given period, they are automatically invited to a disciplinary meeting. Others use the Bradford Factor which attributes an arbitrary score to an employee’s absence record.
The bottom line is that mainstream HR is very good at managing people out of their jobs if they become too unwell to do them!
How could we do things differently?
One of the most valuable things we can do in progressive organisations is to invite everyone to contribute to the creation of our policies. By talking through what needs our current members have, and what experiences we collectively hold of coping with disabilities and health issues at work, we can explore an alternative approach to looking after and fairly supporting one another through periods of ill health, and be open to flexible solutions. This will help us to write policies that are more people-centred, more co-operative and more caring. After all, many of us could still play a useful role in our organisations and bring a valuable voice whether or not we are able to commit to standard working hours and practices. If we choose to dismiss people with disabilities or complex health problems, even if we do so fairly under the law, we are actively choosing to miss out on having people in our teams who have lived experience of a major system of wider oppression. In doing so, we may work less well with any clients and members of our organisations who are also disabled, and we may develop programmes, services and policies that are more exclusionary than we realise. In progressive organisations it’s up to us to think about how we can support one another to create workplaces that reflect our values and our vision for a fairer society, one that doesn’t seek to exclude those with disabilities and health problems.
However much we wish to support each other, it may be impossible for our organisations to pay full salary to employees on sick leave over an extended period or to hold someone’s role open indefinitely. So we need to think about what is possible for us above and beyond our legal requirements, and how we can be creative and fair in any systems and benefits we agree on.
How should we approach writing our policy?
We recommend taking the time to work out the details with input from as many people as possible in your organisation to consider the needs of your members, what each of you would really welcome and value to support you to manage health-related problems without the additional stress and anxiety that worrying about work can bring.
You will also need to consider the financial and operational realities of your organisation. For example, a small co-op bakery operating on tight margins that needs people physically at work during set hours to bake and sell produce is unlikely to have the flexibility that a tech co-op or grant-funded research-based organisation could offer in terms of flexible hours and remote working.
Your aim is to create a policy that genuinely works for all of you and for your organisation, and ideally builds in support for those with more complex health needs who may join you in the future.
Things to consider:
- What needs do your current members have?
- What sort of shared understanding do you have around health issues and working practices? Are there areas you know you need to focus on and improve so people feel supported to take time off if they need to?
- What flexibility can you build in to help people take time off when they need to, e.g. when difficult emotional situations arise and/or someone’s mental health and wellbeing starts to decline?
- Can you encourage and support people to take mental health days when they need them, and write that into your policy?
- What about menstrual health? Could employees struggling with PMS or PMDD, or endometriosis or any other menstrual-related condition causing pain and suffering, take additional paid days off when they need them?
- How about employees struggling with debilitating menopause-related symptoms? Could you bring in opportunities for flexible working and additional paid time off?
- Could you introduce any additional support for pregnancy-related illnesses and appointments, including IVF?
- Do you have an Employee Assistance Programme in place? This could offer a range of benefits including telephone advice lines and wellbeing support, as well as access to various services, such as counselling and physiotherapy.
- Does anyone have a long term health condition requiring regular medical appointments? Are you able to offer flexible working and/or paid additional leave to accommodate the time they need for appointments?
- Could you introduce some training for staff around disability justice, to create a wider understanding and a more supportive work environment for disabled people?
- How do you want to approach ‘unauthorised’ sickness absence, for example if someone doesn’t come in and doesn’t let anyone know that they’re unwell?
Download the full guide including template policy:
Start the discussion at community.radhr.org