Fear is preventing workers and employers from having constructive conversations about support for ill health and disabilities, causing people to become unemployed, according to Sir Charlie Mayfield, who is leading the government’s ‘Keep Britain Working’ review.
HR managers have been told not to call employees that are on sick leave because they could be accused of bullying, he said in an interview with the Financial Times.
“There is a lot of fear. People who are fearful of disclosing their condition … and also fear on the side of the line manager, of saying the wrong thing,” he said, emphasising that employers are very concerned about the potential of employment tribunal claims.
But Mayfield said that more health support was needed in the workplace to prevent people falling out of the workforce and onto benefits.
‘No legal barrier’
Karen Jackson, solicitor and founder-CEO of didlaw, a discrimination law boutique, said: “There is no legal barrier to contacting people on sick leave. I recommend that keeping in touch is a core part of the sickness absence process and that if employers are offering enhanced contractual sick pay above statutory sick pay they should be entitled to know what the employee is doing.
“If you tie the two things together – sick pay and contact – employees are much more likely to comply with reasonable orders to keep in touch.”
She said that sometimes an employee might allege harassment if there is too much contact.
“If you want to avoid this, don’t send registered letters to someone’s home letting them know their pay is about to end unless you want to scare the living daylights out of them.
“Contact is vital provided it is the right kind of contact and the focus is on genuinely ensuring the employee feels safe and supported and is wanted back at work when health allows.”
Keep talking
However, one of the biggest mistakes employers make, which is usually driven by fear of getting it wrong, is to stop communicating when someone goes off sick, she explained.
“It makes managing the situation virtually impossible and it makes the sick person feel unimportant.”
She said it is “vital” to keep the dialogue open, particularly as there may be an issue with a line manager, which has caused the absence. This potential situation makes it important for contact to be maintained with someone other than that manager.
“Really common sense things make a huge difference. If the person thinks they are valued and wanted back at work, health-permitting, you are halfway to a solution,” Jackson added
‘Showcase’ support
Employees need to feel they work in a safe and supportive workplace culture before they will be comfortable sharing information about the support they need with their line managers.
“Part of the problem about creating a safe culture in which to encourage disclosure of health issues or disability is about employees understanding that they will be supported and not ushered into the exit lounge,” Jackson explained.
“Unfortunately many companies have a policy of ousting staff who become sick so that when someone who is sick or disabled disappears from the workplace it creates fear for others who see how the issue has been handled.”
‘Disciplinaries not fit for purpose’
Jackson said that to turn the situation around employers will need to communicate openly with staff about what happens when they get sick, because it is a when not an if in most cases. Employers will also need to “showcase” how support is provided to people with disabilities “without the constant resistance that exists to making reasonable adjustments”.
For Jackson, a good starting point would be “to stop using disciplinary proceedings for managing this [sick leave]: it just does not work and is not fit for purpose”.
‘Too much fear and panic’
Training would help line managers understand the basic legal principles around health and disability support at work. It would also clarify that “it is okay to ask questions about health and disability when approached in a sensitive manner”, she added.
“There is too much fear and panic about potential discrimination and this gives managers inertia. Managers are rarely trained in how to deal with this and it’s a shame because it would help the people who are already struggling to manage health and work and it would stop the merry-go-round for people who once they fall out of a job may not get back into the market.
“Awareness of the law is essential but also essential is specific guidance on how to approach the issue with clear communication and sensitive management. A lot of what I see is very heavy-handed and quite scary for an employee who already feels vulnerable, i.e. disciplining someone for taking time off without making any effort to understand what is going on.”
