Publication - Consultation paper

NHS 'Once for Scotland' workforce policies: consultation on core policies

Published: 17 Apr 2019

This consultation focuses on the policies for grievance, conduct, capability, bullying and harassment, attendance and the investigatory process for workforce policies.

NHS 'Once for Scotland' workforce policies: consultation on core policies
6. Attendance

6. Attendance

6.1 Aim
6.1.1 To encourage and support employee attendance where health impacts their ability to be at work.

6.2 Scope
6.2.1 This policy applies to all employees and workers such as bank, agency and sessional workers where health is impacting on attendance.

6.2.2 Where health is impacting on performance please refer to the Capability Policy <Link to the Capability Policy>.

6.2.3 Where the employee needs time off for other reasons there are a range of other policies available. <Link to Supporting Work-life Balance policies>

6.3 Definitions
6.3.1 Disability - The Equality Act 2010 defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on an individual's ability to carry out normal day-to-day activities.

6.3.2 Industrial Injury -Where an employee is injured or contracts a disease in the course of their work as detailed in Section 22 of the Agenda for Change Terms and Conditions of Employment Handbook.

6.3.3 Long-term Absence - A period of sickness absence which lasts for 28 calendar days or more.

6.3.4 Medical Exclusion - Where an employee is excluded from work because they may be at particular risk of ill-health or may be a risk to others e.g. a pregnant employee may be exposed to an infectious illness; or an employee has recovered from illness but is still considered to be infectious.

6.3.5 Medical Suspension - Where an employee is suspended from work due to concerns about their fitness to work due to a health issue.

6.3.6 Phased Return to Work - Where an employee returns on reduced hours or alternate duties to facilitate an earlier return to work following sickness absence. This will also enable an assessment of readiness to commence normal working hours and duties.

6.3.7 Sickness Absence - Where ill-health renders an employee unable to attend for work.

6.3.8 Short-term Absence - A period of sickness absence which lasts for less than 28 calendar days.

6.3.9 Triggers - Prompts to initiate supportive intervention at either 4 separate episodes of absence or short term absences totalling 8 or more working days within a rolling 12 month period or for longer term absence 28 calendar days.

6.3.10 Unauthorised Absence - Where the agreed absence notification or certification procedure has not been followed.

6.4 Roles and Responsibilities
6.4.1 Line Manager

  • Take action to identify and reduce, where possible, underlying causes of sickness absence with a view to preventing ill-health.
  • Ensure appropriate early intervention where ill-health arises to prevent the escalation of healthcare needs.
  • Support the health, safety and wellbeing of employees recognising their duty of care.
  • Seek, consider and implement OHS and health professional advice where appropriate to support employee attendance.
  • Update/record absences in a timely manner across relevant systems.

6.4.2 Employee

  • Recognise personal responsibility to take reasonable care of their own health and wellbeing and ensure they are fit to work without detriment to themselves or others.
  • Actively participate in the process in an attempt to manage the issue without delay.
  • Communicate at the earliest opportunity any underlying health issues or other contributing factors which may impact on their attendance at work.

6.4.3 Occupational Health

  • Provide expert, impartial and timely advice in relation to how an employee's health issues impact on their attendance at work.
  • Consider information provided from a variety of sources e.g. GP's, other agencies, job role to make sure that all relevant information is available concerning an employee's circumstances to advise managers accordingly.
  • Advise on whether an employee may be considered as having a disability under the Equality Act 2010.
  • Seek, identify and advise on appropriate solutions including reasonable adjustments based on information available and individual circumstances to enable employees to remain in work, return to work and maintain attendance.

6.4.4 There are a range of standard expectations on all parties and on HR, Trade Union representatives and Occupational Health which underpin all policies<Link to standard roles and responsibilities>.

6.5 Procedure
6.5.1 Absence Reporting
6.5.1.1 Where an employee is unable to attend work due to sickness they must:-

  • Advise their manager (or agreed alternative contact) before their normal start-time.
  • Make contact by telephone unless other contact arrangements have been agreed.
  • Only use a third party to report their absence in exceptional circumstances where it is not practicably possible for them to do so themselves.

6.5.1.2 Where an employee becomes unwell during the working day, they must:-

  • Contact the manager (or agreed alternative contact) before leaving work.
  • If they are unable to do so, they should leave a message and make contact as soon as possible to ensure that the message has been received.

6.5.1.3 For either of the circumstances above, the manager (or agreed alternative contact) and employee should discuss the nature of the illness, likely duration of absence, expected return to work date and arrangements for keeping in contact during the absence.

6.5.2 Supportive contact during Sickness Absence
6.5.2.1 The manager must agree arrangements with the employee for contact during sickness absence including the method and frequency of contact.

6.5.2.2 This is intended to facilitate supportive conversations that may include:-

  • Keeping the manager up-to-date with progress in relation to the employee's illness.
  • Planning for their return to work and identifying any support which might aid the employee in their recovery and return.
  • Ensuring up to date information regarding the workplace is shared with the employee.
  • Depending on the length of absence, include information regarding the employee's pay status.
  • Highlighting sickness absence triggers that may involve use of the formal stages of this policy.

6.5.2.3 When an absence has continued beyond 28 calendar days, the manager will normally arrange to meet with the employee. Where this is not possible or appropriate the discussion can be by telephone and a record of the discussion and any return to work plan agreed should be confirmed to the employee in writing within 7 calendar days<Link to standard letter>.

6.5.3 Absence Certification
6.5.3.1 Where the absence lasts 7 calendar days or less an employee can self-certify.

6.5.3.2 Where an absence period lasts more than 7 calendar days, a medical certificate (e.g. a Fit Note/Med 3 or Med 10 certificate) issued by a General Practitioner or other Medical Practitioner is required. This must be provided to the manager in advance of return to work and in cases where there are multiple Fit Notes these should cover the whole period of the absence and be submitted to the manager in a timely manner for service delivery and pay purposes.

6.5.4 Injury at Work
6.5.4.1 Where it has been determined that an employee's absence from work is due to an injury, disease or other health condition which are wholly or mainly attributable to their NHS employment the manager must ensure the appropriate documentation including an incident report and where necessary Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) is completed. The manager must record for payroll purposes that the absences related to injury at work. Absences related to injury at work will not be counted towards calculation of paid sick leave the employee is entitled to within the 12 month period. The employee should also be advised of the potential entitlement to NHS Injury Allowance. <Link to NHS Injury Allowance provisions>

6.5.4.2 The employee will be supported under the return to work provisions of this policy including the potential introduction of reasonable adjustments and consideration of any revisions to the absence triggers.

6.5.5 Arrangements for Medical Exclusion following Infectious/Notifiable Disease
6.5.5.1 While the employee is experiencing symptoms this should be recorded as sickness absence.

6.5.5.2 Where the control of infection advice requires the employee to remain off work for a period after expiry of symptoms, this period will be regarded as medical exclusion with full pay. The manager must record for payroll purposes that the absence is a medical exclusion/control of infection leave.

6.5.5.3 Alternatives to medical exclusion should always be considered.

6.5.6 Pregnancy Related Illness
6.5.6.1 Sickness absence attributable to pregnancy will be managed in accordance with the attendance policy to facilitate a return to work as soon as possible with any necessary support or adjustment to duties during the pregnancy.

6.5.6.2 These absences are recorded in the normal way but will not be considered for the purposes of absence management triggers.

6.5.6.3 The employee will still be supported under the provisions of this policy in terms of returning to work including any consideration of reasonable adjustments.

6.5.6.4 Where a pregnant employee is absent from work due to sickness related to the pregnancy during the last 4 weeks before the expected week of childbirth maternity leave will normally commence.

6.5.7 Planned Long Term Sickness Absence
6.5.7.1 Sickness absence can be planned where it is known that an employee will be undertaking a programme of clinical treatment that will be debilitating for a recognised period of time, for example, surgery or chemotherapy.

6.5.7.2 The manager and employee will meet prior to the absence to discuss the following:-

  • Agreed dates and times for maintaining regular contact, to update each other on work and progress of recovery.

6.5.8 Pay during Sickness Absence
6.5.8.1 Pay during sickness absence is dependent on length of service. For all information on pay during sickness absence, including variation in exceptional circumstances, please refer to Section 14 of the Agenda for Change Terms and Conditions Handbook <Link to section in AfC Handbook> and the relevant Medical and Dental terms and conditions <Link to MSG>. Workers have no entitlement to occupational sick pay but may have to entitlement to statutory sick pay <insert link www.gov.uk/statutory-sick-pay >.

6.5.8.2 In cases involving Workers <link to scope definition of Worker>, if the required standard of performance is not met and continued engagement with the organisation is not appropriate the individual will be offered no further shifts / work.

6.5.9 Secondary Employment <link to Safer Pre and Post Employment PIN>
6.5.9.1 Employees have a duty to facilitate their recovery and return to work as soon as possible.

6.5.9.2 Where an employee undertakes additional paid or unpaid work they must consider how continuing this work during their sickness absence would impact on their recovery and ability to return to work. Should an employee wish to consider undertaking other work during sickness absence they should seek advice from their manager prior to commencement.

6.5.9.3 Employees should be aware that undertaking secondary employment, during sickness absence may be considered fraudulent and such cases may be referred to NHSScotland Counter Fraud Services (CFS) and result in criminal proceedings.

6.5.10 Sickness during Annual Leave
When an employee becomes unwell during a period of previously arranged annual leave they can choose whether their period of illness is to be treated as sickness absence or as annual leave. If they wish the period of illness to be treated as sickness absence they are required to report this in line with normal notification and certification procedures. The employee will be deemed to have been on sickness absence rather than annual leave from the date of notification.

6.5.11 Time away from home during Sickness Absence
An employee who is absent from work due to sickness may decide to take time away from home for the purposes of recuperation. Time away from home will continue to be regarded and recorded as sickness absence where appropriately certificated. The agreed keeping in contact arrangements will continue to apply. Employees should be available to attend any meetings required under this policy including Occupational Health appointments. In exceptional circumstances alternative arrangements can be agreed.

6.5.12 Annual Leave accrued during Long Term Sickness Absence
Employees who are unable to use up their annual leave entitlement within a given leave year because of long term sickness absence will be entitled to carry over the remaining balance of their statutory holiday entitlement into the following leave year. The entitlement is based on the statutory holiday entitlement of 28 days (pro-rata) as defined by the Working Time Directive minus any annual leave and/or public holidays taken before sick leave began. <Link to CEL 17(2009)>

6.5.13 Return to Work
6.5.13.1 When an employee returns to work following any sickness absence the manager and employee must have a return to work discussion as soon as possible and within 2 working days of the employees normal/rostered days back in the workplace.

6.5.13.2 The return to work discussion will take place with the manager or designated deputy. The expectation is that this is a face-to-face discussion and telephone or video-conference facilities would only be used where the employee and manager are content that all other options have been fully explored.

6.5.13.3 The aim of the return to work discussion is to ensure that the employee is ready to return to work with any necessary revisions, amendments or support in place. It is also an opportunity to have a meaningful conversation about how the employee can be supported to maintain and improve their attendance. Other policies related to health and wellbeing are available to inform and guide managers in this process e.g. dependency issues, stress, work-related impacts.

6.5.13.4 The Return to Work Discussion Form will be used to inform and record the discussion <Link to Return to Work Discussion Form>.

6.5.13.5 The manager and employee should discuss and agree arrangements with any professional advice e.g. from the employee's GP or from OHS. Arrangements may include a phased return to work and/or other adjustments that should where possible, be considered and discussed prior to an employee's return to work date. Subsequent meetings may take place following the employee's return to review the effectiveness of any support mechanisms.

NB. The arrangements for the terms and conditions, including pay for a phased return to work have been referred to Scottish Terms And Conditions Committee (STAC) for consideration.

6.5.14 Referrals to OHS
6.5.14.1 Self-Referral
6.5.14.2 Employees can self-refer to OHS for any health matters relating to or affecting their work. Any report resulting from a self- referral is confidential unless the employee consents to it being shared with their manager.

6.5.14.3 Management Referral
6.5.14.4 Managers can refer employees to OHS in order to support the employee with health matters relating to or affecting their work and to enable OHS to provide advice to the manager. Managers must use a template management referral form if this is provided by their OHS provider.

6.5.14.5 The content and reasons for the referral must be shared and discussed with the employee prior to this being progressed to OHS. In exceptional circumstances where this is not possible, the manager must advise the employee that the referral is being progressed and the reason for this.

6.5.14.6 The employee should be advised that failure to engage with the management referral process and Occupational Health contact may result in the manager making decisions based on limited information.

6.5.15 Formal Procedure
6.5.15.1 Absences can be frequent short term absence, long term absence or a combination of both. Supportive discussions will already have taken place through contact during the absence period, at the return to work meeting and/or at any subsequent meetings.

6.5.15.2 The formal process should be considered where support mechanisms have been unsuccessful in improving attendance, there is a continued pattern of absence and/or the absence management triggers indicate.

6.5.15.3 The focus of the formal process will be to give an employee further support to help them to achieve the expected attendance level. The formal process involves three stages and the key steps are shown in the flowchart <Link to the Flowchart>.

6.5.15.4 The discussion and actions taken during the formal stages will depend on the employee's individual circumstances. Whilst it would normally be the case that each stage of the process would be followed sequentially, there may be circumstances where it is appropriate to enter the process at Stage 2 or 3. Where it has been agreed that there is no possible return to work for an individual, it may be appropriate to enter the process at Stage 3. This would require all parties to agree.

6.5.15.5 In attendance cases involving Workers <link to scope definition of Worker>, consideration should be given as to whether any support mechanism are possible and appropriate. Where this is not possible the case should be progressed to Stage 3 of the process.

6.5.15.6 The employee must be advised of all formal stage meetings and review meetings in writing <Link to standard letter>. A minimum of 7 calendar days' notice will be given. If the employee is unable to attend and the rationale offered is considered reasonable, another date will be given with a minimum of 7 calendar days' notice. If an employee is absent from work, this does not prevent them from attending any meetings, unless advised otherwise by Occupational Health.

6.5.15.7 Where expected attendance levels are not achieved this may result in dismissal.

6.5.16 Stage 1
6.5.16.1 At the Stage 1 Absence Management meeting, the manager will meet with the employee to:-

  • Discuss how the employee can be supported to improve their attendance
  • Advise the employee of the impact of their attendance on the organisation and service delivery
  • Discuss and consider any health professional advice already received or whether to seek advice including any proposed reasonable adjustments and/or support initiatives in line with OHS advice and The Equality Act 2010
  • Discuss and set an appropriate standard of attendance on the basis of absence management triggers taking account of the need to make any adjustment to the standard e.g. to comply with the provisions of the Equality Act 2010
  • Discuss the potential impact of the employee working overtime, additional hours or additional employment and whether a period of working basic hours would support the employee to maintain good health. Further advice from HR and Occupational Health should be sought.
  • Discuss and agree the monitoring and review arrangements for the agreed standard of attendance.
  • Advise the employee that if the required improvement is not achieved, there will be further progression through the formal procedure and this could ultimately lead to dismissal.

6.5.16.2 Reasonable adjustments must be explored. These might include:-

  • Adjustments to the workplace and/or workstation.
  • Reduction in working hours – temporarily or permanently.
  • Redesign or modification of duties.

6.5.16.3 The manager must confirm the agreed standards of attendance, timescale for review and any supportive actions agreed to the employee in writing within 7 calendar days of the meeting. <Link to standard letter>

6.5.16.4 It may be agreed that there will be one or more review meetings to discuss progress and agree any further support required. The date(s) of this/these meetings may be brought forward in the event that the employee's absences have exceeded the required standard of attendance prior to the date of the review meeting.

6.5.16.5 The outcome of the stage 1 final review meeting will be one of the following:-

  • The employee has met the required attendance levels set and no further action will be taken.
  • The employee has not met the attendance levels set due to extenuating circumstances and improved attendance is anticipated therefore the review period is extended.
  • The employee has not met the attendance levels set and the matter is progressed to Stage 2.

6.5.16.6 At the final review meeting the outcome and next steps will be discussed. Where the required improvement has not been achieved during the agreed timescale and the manager has concluded that there is a need to progress to the next stage, the evidence and rationale for this decision will be discussed with the employee.

6.5.16.7 The outcome of all Stage 1 review meetings will be confirmed to the employee in writing within 7 calendar days<Link to standard letters>.

6.5.17 Stage 2
6.5.17.1 Stage 2 meetings will follow the same format as Stage 1 meetings, with any updated or new documentation/information. There will be a review of previously identified support measures including any proposed reasonable adjustments and/or support initiatives in line with OHS advice and The Equality Act 2010. This will involve a review of ongoing supports and whether alternative and/or additional adjustments including redeployment are appropriate. Account will be taken of any further OHS advice received.

6.5.17.2 Reasonable adjustments must be explored. These might include:-

  • Adjustments to the workplace and/or workstation.
  • Reduction in working hours – temporarily or permanently.
  • Redesign or modification of duties.
  • Redeployment in line with the NHSScotland Redeployment Policy <insert link>.

6.5.17.3 Following any interim reviews, a final review meeting will be arranged. The outcome of the Stage 2 final review meeting will be one of the following:-

  • The employee has met the required attendance levels set and no further action will be taken.
  • The employee has not met the attendance levels set due to extenuating circumstances and improved attendance is anticipated therefore the review period is extended. If the required improvement is not achieved after the extended timeframe, the matter will be progressed to Stage 3.
  • The employee has not met the attendance levels set and the matter is progressed to Stage 3.

6.5.17.4 At the final review meeting the outcome and next steps will be discussed. Where the required improvement has not been achieved during the agreed timescale and the manager has concluded that there is a need to progress to the next stage, the evidence and rationale for this decision will be discussed with the employee.

6.5.17.5 The outcome of all Stage 2 review meetings will be confirmed to the employee in writing within 7 calendar days <Link to standard letters>.

6.5.18 Stage 3
6.5.18.1 Where the required level of improvement is not achieved, a Stage 3 hearing will be convened.

6.5.18.2 The Stage 3 hearing will comprise of a Chair with the authority to dismiss in line with the scheme of delegation and an HR Representative. To ensure impartiality, panel members must have had no prior involvement in the case. Persons in attendance may include:-

  • The employee.
  • Accredited Trade Union representative/and or work colleague, not acting in a legal capacity.
  • The manager.
  • HR support to manager.

6.5.18.3 The Chair will be responsible for ensuring that the panel, employee and their representative are advised in writing of the arrangements and provided with the management statement of case no later than 14 calendar days prior to the hearing. The letter must advise that the hearing may result in termination of employment <Link to standard letters>.

6.5.18.4 Should the employee wish to provide a written statement of case, this should be submitted no later than 7 calendar days before the hearing and will be shared with all other parties.

6.5.18.5 In reaching a decision about the appropriate outcome of the hearing the following matters will be taken into consideration:-

  • The attendance record of the employee.
  • The content and outcome of the supportive discussions and formal management of the employee's absence(s).
  • Current Occupational Health reports including any health professional advice.
  • Whether there is a diagnosis of an underlying medical condition.
  • What adjustments have been considered and put in place and if any requested adjustments were not supported, the rationale for this.
  • What opportunity has been given to improve.
  • The likelihood of improvement in the foreseeable future.
  • The needs of the service and work difficulties created by the absence.

6.5.18.6 Before termination of employment is considered all reasonable adjustments should have been made and all other options must be explored and exhausted.

6.5.18.7 Any decision to terminate employment should not be based on sick pay status.

6.5.18.8 In attendance cases involving Workers <link to scope definition of Worker>, if the required standard of attendance is not met and continued engagement with the organisation is not appropriate the individual will be offered no further shifts / work.

6.5.18.9 The outcome of the hearing and the rationale for the decision which has been made will be confirmed in writing by the Chair within 7 calendar days. <Link to standard letter> If the decision has been based on limited medical information, due to an employee not consenting to or attending Occupational Health appointments, this will be documented in the outcome letter. Contractual notice of termination will be stated and accrued annual leave paid in line with CEL 2009(17). The right to appeal within 14 calendar days will also be advised.

6.5.19 Long Term Absence – Case Review
6.5.19.1 Where there is a single period or recurrent periods of long term absence and there is no indication of a return to work within a reasonable time period it may be appropriate to arrange an absence case review meeting with Occupational Health to ensure that all possible support mechanisms have been considered to facilitate a return to work.

6.5.19.2 Persons in attendance may include:-

  • The employee.
  • Accredited trade union representative/and or work colleague.
  • The manager.
  • HR support to manager.

6.5.20 Early Access to Pension
6.5.20.1 In cases where the employee is a member of the NHS pension scheme, they may be eligible to apply for retirement on the grounds of ill health. This should be discussed with the employee and it is the employee's responsibility to apply for ill-health retirement pension benefits. This will usually follow a discussion with Occupational Health.

6.5.20.2 The employee must be made aware that the decision to terminate employment is not linked to or subject to ill health retirement. The decision to support retirement on ill health grounds lies with the Scottish Public Pensions Agency and not the employer.

6.5.20.3 The ending of employment will not necessarily be delayed in order for a pension application to be made and processed. It is therefore important that employees do not delay making a pension application once appropriate medical advice has been received and/or the decision to terminate employment is made.

6.5.20.4 Details are available from Scottish Public Pensions Agency (SPPA) <Link to SPPA website>.

6.5.21 Appeal Hearing Process
<Link to Guide to Appeal Hearings>
6.5.21.1 All employees will have the right to appeal on the basis of process not being followed, and this exists at all formal stages. However, an appeal at the first formal stage will be paper-based and should not involve attendance at a hearing.

6.5.21.2 The appeal panel Chair, in accordance with the scheme of delegation, will be responsible for identifying membership of the appeal hearing panel.

6.5.21.3 The Chair will also be responsible for ensuring that the panel, employee and their representative are advised in writing of the arrangements, no later than 14 calendar days prior to the hearing<Link to standard letter>.

6.5.21.4 The employee and the Chair of the attendance hearing are required to provide a written statement of their case. These should be submitted no later than 7 calendar days before the hearing and will be shared with all other parties.

6.5.21.5 It is the responsibility of any party calling witnesses to inform them of the arrangements for the hearing.

6.5.21.7 There will not be a delay in implementing management decisions pending an appeal, but they may subsequently be amended or reversed as a result of an appeal meeting.

6.5.22 Outcome
6.5.22.1 Following the hearing the Chair will write with the outcome of the appeal hearing to the employee and their representative. This should include the rationale behind any decisions taken in response to the employee's grounds for appeal. The letter will be issued within 7 calendar days following the appeal hearing <Link to standard letter>.

6.5.22.2 The outcome of the appeal will be final.

6.6 Supporting Documentation

  • Flowcharts – there will be a flowchart which shows visually the key steps in the process at each stage when concerns have been raised about attendance.
  • Standard letters – standard letters will be developed to ensure all the required content is included in letters for each stage of the process including invite/ review/outcome and appeal letters.
  • Guide for Managers – More detailed guidance which advises managers what to do when an employee: reports a sickness absence; does not notify you of their absence; returns to work from sickness absence; is absent from work due to illness or injury caused at work; is absent from work due to long-term sickness; appeals an outcome, supporting staff in terminal illness cases.
  • Guide for Employees–advises employees of what to do when they are unable to attend work because of illness; the support they can expect; how to appeal an outcome, accessing pension in terminal illness cases.
  • Return to Work Meeting Forma checklist and record for managers for return to work discussions.
  • Managers Checklist before moving to Formal Stage 1a checklist of steps a manager should take before moving to Formal Stage 1.
  • OHS Referral Checklist a checklist for Occupational Health Service Self and Management Referrals.
  • Stage 1 Appeal FormanAppeal Form for paper-based appeal at Formal Stage

6.7 Consultation Questions

Attendance: Section 6
(6 Questions)

Question 1:
Is the policy easy to read and clear to all parties?

Yes
No

Question 2:
Is the policy fit for purpose?

Yes
No

Question 3:
Does the language reflect our vision for policies to be user-friendly and supportive reflecting NHSScotland core values?

Yes
No

Question 4:
Are there any additions required to the supporting documents listed?

Yes
No

If yes, please specify

Question 5:
Does the context within which the "triggers" have been placed reflect the supportive aim of the policy?

Yes
No

If no, please indicate the reasons for your response

Question 6:
Please provide any other comments you have in relation to the policy.


Contact

Email: Lynn.Hunter@gov.scot