The construction industry is known for its physically demanding and challenging work environment. With labour-intensive tasks, exposure to various risks, and sometimes harsh weather conditions, it’s no surprise that sickness absence can be a significant issue. It is therefore essential to understand the unique challenges that the construction industry faces when it comes to managing sickness absence. In this article, we will explore the legal framework and provide practical insights for effectively managing sickness absence in the construction sector. To do so, we will be looking at a brief case study to highlight the importance of effective sickness absence management.

Case Study

John is a skilled bricklayer working for a construction company. He’s been a dedicated employee for around six years. However, his job involves repetitive tasks and heavy lifting, which takes a toll on his health. John starts experiencing persistent back pain, which gradually worsens, leading to prolonged sickness absence.

Early Intervention:

John’s supervisor, recognising something was wrong, immediately initiates a conversation with John. This early intervention allows for correct processes to be followed and for John to be appropriately supported.

Effective Policies and Procedures:

John’s employer has well-defined sickness absence policies. These policies ensure that John follows the proper reporting process and medical certification requirements, making the process transparent for all parties involved.

Occupational Health Assessments:

John’s employer arranges an occupational health assessment, considering the nature of his work. The assessment helps evaluate his fitness for his role and suggests necessary accommodations.  In John’s case, the occupational health assessment identified that John’s condition is likely to amount to a disability under the Equality Act 2010 and it recommends a modified work schedule with reduced heavy lifting.  

Under the Equality Act 2010 John’s employer has a duty to make reasonable adjustments, such as the modified work schedule, where there is a provision, criterion or practice in John’s workplace which puts him at a substantial disadvantage due to his back condition. In doing so, John’s employer is likely to also benefit from John being able to return to work sooner than he may have otherwise been able to do so. 

Return-to-Work Interviews:

Upon John’s return to work, his supervisor conducts a return-to-work interview to discuss his progress, the recommended accommodations, and any further support needed to ensure a smooth transition back to full duty. This can prove an opportunity to further assess the current position and ensure John is appropriately supported.

Communication:

Regular communication between John, his supervisor, and HR ensures that he feels supported and understands his rights and entitlements under SSP and other regulations.

Training and Awareness:

John’s manager receives training on recognising the signs of sickness absence and implementing the company’s sickness absence policies effectively. This training helps in addressing similar cases in the future. In doing so, John’s employer can ensure that everyone is aware of their duties and such situations can be effectively managed and mitigates the risks of potential claims arising.

Record-Keeping:

The company maintains detailed records of John’s sickness absence, return-to-work interviews, and accommodations made for him. These records help in demonstrating compliance with legal requirements.

What if John is unable to return?

In the event that John was unable to return to work, notwithstanding the reasonable adjustments being made, John’s employer would need to carefully follow their capability process. This would include holding several review meetings over a period to monitor John’s absence and the prospects of John returning to work as well as ensuring they have considered any appropriate medical advice such as the occupational health report. Upon the outcome of the capability process, assuming a full and proper process has been followed, it is possible that John’s employment could be fairly terminated on the grounds of capability.

Risks of getting it wrong

Discrimination Claims

When managing sickness in the workplace there is often a risk of disability discrimination claims. In our example above it was identified through occupational health that John’s condition is likely to amount to a disability under the Equality Act 2010. As such, John would be protected from a range of discriminatory activity. The most common types of disability discrimination tend to be the result of an employee either being treated less favourably than others directly because of their disability or being indirectly disadvantaged (alongside others with their shared disability) by a provision, criterion or practice being applied by their employer to all employees. By way of example, if John’s employer were to dismiss him without any due process simply because he had a back condition and was unable to work or unable to work as effectively, then it is likely this would amount to a discriminatory act.

However, an employee with a disability may also bring claims for being treated less favourably for an event, action or outcome which arises because of their disability or where a disabled employee is placed at a substantial disadvantage and a reasonable adjustment was possible but not made to accommodate their disability. Claims can also be brought for conduct against the employee which could amount to harassment (such as bullying) or victimisation on account of their disability.

Unfair Dismissal

In general, an employee with two years’ service has the right not to be unfairly dismissed, which in practical terms means that an employer must demonstrate that they have a fair reason for the dismissal, and they acted reasonably in treating that reason as sufficient for the employee’s dismissal.

In cases where sickness absence is, or may be, a key element of the employee’s dismissal the employer will need to critically and carefully manage any sickness absence so that they can demonstrate that the fair reason for the employee’s dismissal is capability (which can include sickness absence). Employers should also be on their guard for potential constructive unfair dismissal claims, where an employee may resign to pre-empt their dismissal. However, by following a fair and proper process such the risk of this happening should be lower.

It should be noted however, that in the event a claim is brought for unfair dismissal (including constructive dismissal) any remedy award will be capped at the lower of 1 year’s salary or £105,707 (whichever is lower).

Personal Injury

Whilst not the focus of the insight, it is worth noting that all employers have a duty to take reasonable care for the health and safety of their employees in the workplace. As a result, an employee may be able to bring a claim in negligence against their employer for personal injury, if they can establish that the employer’s breach of this duty caused a physical or psychiatric injury, and it was reasonably foreseeable that the breach would result in the injury suffered. For example, if John were able to show that his back pain was caused as a result of negligence by his employer, he may have a potential claim.

Managing sickness absence in the construction industry requires a proactive and legally compliant approach. Employers need to navigate a complex legal framework while addressing the unique challenges presented by the industry’s demanding nature. By fostering early intervention, clear policies, effective communication, and leveraging occupational health assessments, employers can create a healthier and more productive workplace while ensuring compliance with employment laws.

If you would like to discuss anything within this article further or require assistance with managing sickness absence or capability, then please do not hesitate to ​contact us to speak with our Employment Team who will be happy to assist.