New ACAS advice
1. Absence trigger points
2. Whistleblowing
In addition to a proposed new Code of Practice for flexible working requests (covered in our update here), ACAS has also recently released advice on absence trigger points and, separately, whistleblowing. Although ACAS advice is not binding, following the ACAS advice will make it easier for employers to demonstrate that they have a reasonable and proper cause to suspend. In this update, we summarise key points from this recent advice.
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Absence trigger points
In order to monitor and proactively deal with employee absences, some organisations have in place systems with 'trigger points' or 'review points' which kick in above a certain threshold of absences, resulting in some form of review and next steps. If such a system is used, it should be clearly set out in the organisation's absence policy.
There are no specific rules governing when or how often an employer reviews absences, but the ACAS advice provides an overview of key points to watch out for, including:
- Avoid automatic disciplinary action: Automatic disciplinary action for reaching certain absence trigger points should be avoided, given this may result in, for example, an unwell employee trying to come back to work early simply to avoid reaching a certain review point.
- Have a conversation: There is always an underlying reason for absences, whether it's wellbeing-related, pressures outside of work or otherwise. The ACAS advice therefore recommends a conversation with the employee to understand the reasons and how the employer can support them e.g. occupational health referrals.
- Avoid discrimination: The ACAS advice reminds employers about not discriminating against employees through processes or policies, such as absence trigger points. The advice gives the example of a disabled employee who needs to take time off work for regular medical treatment. In such circumstances, flexibility is needed when considering what absences count towards the trigger point. A conversation about absences may also reveal a disability and that should prompt a discussion on e.g. reasonable adjustments for the employee.
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Whistleblowing
The new ACAS advice on whistleblowing is designed to be a simple overview of the protections for those who whistleblow at work. A whistleblower is someone who reports wrongdoing at work that affects others.
Employers and HR leads should:
- Check any policies dealing with whistleblowing are up-to-date and align with e.g. this ACAS advice.
- Provide training to all employees (and especially managers) on the relevant rules on whistleblowing protection, by reference to this ACAS advice.
A high-profile example of a senior leader getting this wrong was the case of former Barclays CEO Jes Staley initiating a search to identify a whistleblower within the bank. Mr Staley was fined nearly £650k by the FCA and PRA for his actions.