Created on: 23 Jan 2018 | Last modified: 17 Jul 2023
1.1 The following resolution was approved by the 2011 Annual General Meeting:
"This AGM instructs Council to investigate Absence Management Policies in operation and to resist any attempts to remove occupational sick leave and any move to automatic disciplinary action as a result of poor attendance due to ill-health."
1.2 The Committee decided to refer the terms of the second part of the resolution to the Salaries Committee for consideration.
1.3 The Committee wrote to Scottish Councils and Scottish Colleges in the first instance. The entitlement of the EIS to receive this information was reinforced with reference to the Freedom of Information (Scotland) Act.
1.4 The Committee notes that employers can dismiss employees on the grounds of capability. A capability dismissal relating to "skill, aptitude, health or any physical or mental quality" falls within one of the potentially fair reasons for dismissal under section 98(2) (a) of the Employment Rights Act 1996. The Committee accepts that there is a link between ill-health and disciplinary procedures.
2.1 In order to provide assistance in addressing the issues, a pro forma was provided to the employers. 21 responses were received from Scottish Councils and 28 responses were received from Scottish Colleges.
2.2 9 out of 21 Scottish Councils (43% of respondents) reported that they operated Managing Attendance Policies and Procedures whereas 12 out of 21 Scottish Councils (57% of respondents) reported that they operated Sickness Absence Management Policies and Procedures.
2.3 With regard to Further Education Colleges, 11 out of 28 Colleges (39% of respondents) reported that they operated Managing Attendance Policies and Procedures and 17 out of 28 Colleges (61% of respondents) reported that they operated Sickness Absence Management Policies and Procedures.
Analysis of Responses
2.4 Attendance Management Policies and Procedures are more extensive than sickness absence policies covering areas such as flexible approaches to the taking of annual leave and ‘special leave’ for necessary absences not caused by sickness. Constructive attendance management policies and procedures, developed in partnership with the trade unions, can make a positive contribution to reducing absenteeism. Such policies should include preventative measures aimed at reducing health risks in the workplace. Teachers returning to work after illness, injury or the onset of disability may be more vulnerable to risks to their health at work. They may also require adjustments to their work pattern or job tasks. Trade unions can help identify actions that will help employees to return to work safely after periods of absence.
2.5 It is a concern of the EIS is that some Scottish Councils do not always follow the provisions of the SNCT Handbook, or seek to redefine SNCT provisions, when considering the issue of teacher absence locally. The EIS remains of the view that it is not competent for any individual Scottish Council to resile from the provisions of the SNCT Handbook which are national matters.
2.6 The purpose of Attendance Management Policies and Procedures should be to provide a framework through which an employer can support individuals who are seeking to return to work and consider adjustments to the work situation to assist effective working.
2.7 However, in practice, Attendance Management Policies and Procedures are used to give management information surrounding the steps to be taken to achieve an improvement in employee attendance levels. The data is collected for a number of purposes
To benchmark absence levels against national averages, or against other organisations
To compare absence levels between different locations and/or departments
To identify particular patterns of absence and any problem areas;
To devise plans to support employees to return to work and to improve employee attendance
To establish trigger points for individual attendance reviews.
2.8 Appendix 1 and Appendix 2 show “trigger points” for individual attendance review meetings in Scottish Councils and Further Education Colleges respectively. Once a trigger point has been reached, the line-manager will arrange a meeting with the employee to discuss the frequency, nature and impact of the absences.
2.9 Many teachers and lecturers do not feel that individual attendance review meetings are supportive to their individual circumstances. It continues to be an issue for the EIS that in order to address Council-wide concerns over absence rates, absence management and attendance management policies are increasingly target driven, unsupportive, inflexible and potentially punitive.
2.10 The Accounts Commission for Scotland has a duty under the Local Government Act 1992 to direct local authorities to publish certain information. The information enables comparisons to be made between different local authorities in a specified financial year and across different financial years. The information contained in Appendix 3 covers the period up to the end of financial year 2010/11 and reports on the average number of working days per employee lost through sickness absence for teachers and for all other local government employees.
2.11 In each Scottish Council, the absence rate of Scottish teachers is lower than the absence rate of other Council employees. This has consistently been the case over the last three financial years. The average number of days of absence per teacher in 2010/2011 was 6.1 days (an absence rate of 3.13%). The lowest absence rate for teachers was 4.5 days (an absence rate of 2.3%) and the highest rate of absence for teachers was 9.3 days (an absence rate of 4.8%).
Fitness to Work Statements
3.1 Any absence management policy requires to take account of the medical advice set out in a fitness to work statement completed by an employee’s GP.
3.2 On 6 April 2010 fitness to work statements were introduced to replace “sick notes”. The certificate requires a doctor to determine that the patient is not fit for work or, where it is appropriate, that the patient “may be fit” for work. The Salaries Committee considered this matter and issued advice to local association secretaries and EIS-FELA branch secretaries. A copy of this advice is appended as Appendix 4.
3.3 The statement sets out four options (a phased return to work; amended duties; altered hours; workplace adaptions) which may assist a return to work. It is for the employer, in consultation with the employee, to make the decision whether or not to follow the recommendations given by the fit note. If the employer cannot or will not make the recommended changes, then the employee is effectively considered to be unfit to work until they are fully recovered.
3.4 The Labour Research Department published the results a survey of union experience of the fit note system amongst union representatives in May 2011. Survey respondents indicated that phased return to work is the most common recommendation on fit notes (80%). 71% of respondents had seen amended duties recommended and 60% had seen altered hours proposed. Only 40% of respondents said that they had seen fit notes requesting a workplace adjustment, for example, a change of location.
3.5 While the TUC has supported giving workers the opportunity to have a phased return to work, it has consistently expressed concern that GPs do not know enough about occupational health. Survey respondents in the LRD Survey indicated that fit notes have been vague at times and have displayed a lack of understanding by GPs of the work undertaken by patients. From the employers’ perspective, a common complaint was that GPs made suggestions that were impossible for the organisation to accommodate and that GPs did not understand the nature of individual jobs.
Health at work – an independent review of sickness absence
4.1 The switch to fit notes came as a result of Dame Carol Black’s 2008 Review of the health of the working population. In February 2011, the Coalition Government commissioned a further review of the sickness absence system in Great Britain. The review was jointly chaired by Dame Carol Black, National Director for Health and Work and David Frost, former Director General of the British Chambers of Commerce. The report was published by the Department of Work and Pensions (DWP) on 21 November 2011.
4.2 The central recommendation was that the Coalition Government should establish an Independent Assessment Service (IAS) which would provide an assessment of an individual’s physical and/or mental function. It would also provide advice about how an individual could be supported to return to work. The service would replace GP certification.
4.3 Although the report recommends few major changes and also strongly rejects an insurance based scheme, some of the proposals could be used by employers either to challenge the advice from a GP or to force sick and injured employees back to work sooner than is good for their health. In addition, TUC has noted that the report fails to address the issue of ‘presenteeism’ where workers come in to work when they should be off sick, despite evidence that this is a major and growing problem in the workplace. The TUC is particularly concerned over how the assessment centres will work, as well as aspects of the job-brokering service on newly disabled workers. The TUC also rejects the comments on public sector absence and the proposals for a further review of occupational sick pay in this area.
4.4 The report stated that a common theme amongst employers across public and private sectors was a belief that the current certification system does not meet their needs. Employers reported that too few fit notes describe an employee as ‘may be fit’. Evidence from the Department for Work and Pensions (DWP) suggests that around 10 to 15 per cent of fit notes are issued containing a ‘may be fit’ statement. Employers are also concerned that when a ‘may be fit’ note is issued, the advice given is often not as helpful as they would wish.
4.5 The report concluded that the fit-note system would be significantly strengthened if government guidance were changed to set out clearly for doctors that when issuing fit notes they should consider work in a general sense, not merely the specific job of an individual. It recommended that the Government revise fit note guidance to ensure that judgements about fitness to work move away from only job-specific assessments. This recommendation is a major concern for trade unions since employers could attempt to seek to move someone who has become disabled to another job rather than make adjustments to keep them in their existing one. Advice to Members and EIS Representatives
5.1 Detailed advice on Occupational Health was approved by the 2005 Annual General Meeting. This advice is appended (Appendix 5).
5.2 Interviews between teachers and lecturers and their doctor and/or representatives from occupational health are confidential and are covered by medical ethics. Therefore, there is no locus for an EIS representative to accompany a member, or for the employer to have a representative present, at any medical appointment.
5.3 EIS input may be necessary when an employee has a fitness to work statement which indicates that she/he may be fit to work with support through the options in the statement and the GP’s advice. In such circumstances members may seek to be accompanied to any meeting.
5.4 While representation at any informal return to work interview is not required, it is essential that representation should be offered to the member in all formal absence monitoring meetings.
5.5 For the avoidance of doubt, it is the view of the EIS that a meeting ceases to be an informal meeting if the line manager attending the meeting is accompanied, for example, by another line manager or supervisor and/or a representative from HR/Personnel.
5.6 It is the advice of the EIS that a member should not agree to attend an informal discussion unaccompanied if more than one management representative is in attendance.
Further advice to Local Association Secretaries and Branch Secretaries
6.1 Absence management procedures should be designed to provide a framework through which an employer can support individuals who
are seeking to return to work and consider adjustments to the work situation to assist effective working.
6.2 Local Association Secretaries and Branch Secretaries should regularly review the contents and operation of absence management/attendance policies and procedures in workplaces.
6.3 Local Association Secretaries and Branch Secretaries should seek to ensure that absence management/attendance policies and procedures contain sufficient supportive mechanisms and provide an adequate framework through which an employer can support individuals who are seeking to return to work.
6.4 Where the absence is work related (including work related stress or the physical impact of workplace bullying or harassment), Local Association Secretaries and Branch Secretaries may act as a point of contact for the employer during the absence.
6.5 It is extant EIS policy that the determination of “trigger points” should be discussed with representatives of the EIS. In addition, the circumstances in which “trigger points” may be disregarded will require EIS representatives to make representation on behalf of individual members.
6.6 Local Association Secretaries and Branch Secretaries should seek to minimise a “target-driven approach” to absence management/attendance policies and procedures.
6.7 The responses from employers set out a number of formulae or approaches on the application of triggers. One such example is the Bradford Index which is based on
B is the Bradford Factor score
S is the total number of instances of absence of an individual over a set period
D is the total number of days of absence over the same set period.
The set period is normally a rolling 53 week period.
The Bradford Factor is derived from the formula B = x D
6.8 While the Bradford Index is a useful measure the issue is the point at which the trigger is set. Therefore, any discussion should focus on an appropriate formula and the triggers to be applied.
7.1 It is recommended that the Employment Relations Committee notes the contents of this report.
7.2 It is further recommended that the co-ordination of the response of the EIS to any revision of fit note guidance by the Coalition Government be remitted to the Salaries Committee.
7.3 This report should be copied to Local Association Secretaries and Branch Secretaries in Scottish Colleges.
7.4 This report should be copied to the Salaries Committee.
7.5 It is recommended that Section 5 of this report be distributed to schools and colleges via the EIS Representatives’ Bulletin and should posted on the EIS website.