Sickness Absence Policies and Disability Related Sickness Absence

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2010 National Disabled Members' Conference
30 October 2010

Over 5 years ago in 2005, the Government’s Strategy Unit published a far-reaching paper called ‘Improving the Life Chances of Disabled People’. This report, largely welcomed by trade unions, laid out an ambitious objective of ending discrimination against disabled people in Britain by the year 2025, twenty years later?

A quarter of the way into that objective there seems to be little progress in the case of absence arising from a worker’s disability. Case law can contradict and in some cases weaken the very ethos of ending discrimination against disabled workers.

Workers who have or develop impairments that require them to take extended time off work are particularly vulnerable where employers insist on invoking their existing sickness absence procedures that usually involve prescribed periods of full and half pay, capability meetings and ultimately dismissal, or alternatively put pressure on the worker to take early or ill-health retirements. These sickness absence procedures too often dismiss the need to take account of how disability can affect the health and employment related requirements of a worker, offering little more than a sentence along the lines of “If an employee’s absence related to disability then advice should be sought from Human Resources”. We are particularly concerned that abuse related to work generated stress should be discounted in calculating sickness management procedures.

Research undertaken by Neil Rankin in 2007 showed that sickness absence records were used by 62.5% of employers in formal performance management systems. When an employee and their line manager discussed the person’s performance, their absence record formed part of that discussion, 53.6% of employers also referred to an individual’s absence record, when compiling a reference about them. 25.9% used absence records when selecting individuals for redundancy. Records are also used for financial reward and punishment. 20.5% (1 in 5) in the study imposed financial penalties for absences, such as loss of sick pay. Finally, one in three (35.7%) organisations incorporates absence management into a line manager’s personal objectives. The level of absence among the managers’ teams provided an objective benchmark of their efforts to improve attendance.

The Disability Discrimination Act (DDA) has case law that can be called upon to support a different approach by the employer, but only in some limited situations and usually around the issue of reasonable adjustment, such as extending a contractual sick pay policy where it could be argued that the reason for absence in the first place was the employer’s failure to make an adjustment. Disability leave is listed in the Code of Practice as a reasonable adjustment, but employers are still failing to actively introduce disability leave as part of the employment sickness policy. This year’s introduction of the ‘Fit Note’ is potentially another tool that an employer may use to the detriment of a disabled worker. Few GPs have experience of Occupational Health and yet they will be asked to comment on what an employee can do at work in order to return to work more quickly.

This Conference is concerned that despite the introduction of the DDA and the Disability Equality Duty employers still continue to discriminate against disabled people.

One of the most discriminatory actions employers can take is through rigid and unfair sickness absence management policies.

The continuing recession makes working life more difficult for disabled people. Last year UNISON warned that fears for jobs may stop people telling their employers that they are disabled, which could leave disabled workers struggling to cope without the help they are entitled to.

In the Scottish Region we are aware through anecdotal evidence that employers are increasingly using their sickness absence management policies to ‘target’ staff on the grounds of capability. Many of these people will be covered under the DDA and may be unaware that their employer’s actions are potentially unlawful.

By ensuring that there is a separate category for disability leave in these policies, many of our members could have proper protection and not face the prospect of losing their job through no fault of their own.

Managers need more specialist training, so that they understand the employer’s policy on disability, their obligations under the Disability Discrimination Act and the practice of reasonable adjustments. An essential element will be, of course, that the disabled member is part of any process that involves considering what they can or cannot do. The Disability Discrimination Act has clarified for certain that consultation with the disabled person is a requirement before any decision is reached, so there are strong grounds for pressing this to be done.

In 2009, Conference asked the National Disabled Members’ Committee to conduct a survey within branches to identify how the economic recession is impacting on disabled workers. Conference, this work, along with the re-launch of the national disability leave guidance to branches and regions, also requested by Conference in 2009, is ever more imperative with the political uncertainty that we currently face.

Conference therefore calls on the National Disabled Members Committee to:-

1.Resurrect the campaign on Disability Leave and Sickness Absence;

2.Update the Bargaining guide on this policy;

3.Ensure the campaign is highlighted to Branch Equality Officers and Equality Reps;

4.Make this a key priority for regional committees and ensure it is given the same level of national support as the Challenging Racism in the Workplace project.

5.Seek information from employers about:

·their sickness absence policies;

·their response to the introduction of the fit note, and how they intend to ensure it does not impact unfairly on disabled workers in their employment.

6.Invite submissions from individual disabled members who may have experienced discrimination because of sickness absence policies, having regard to confidentiality and anonymity.

7.Encourage and support branches to negotiate separate disability leave policies in their workplaces.

8.Work with both Labour Link and make use of the GPF to campaign and raise the issue with the Government to ensure that employers follow compliance in line with the Disabil