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Attendance management backsliding procedure and the law at work

DWP/BB/055/07

Collective not legal action

The attendance management backsliding procedure was improved with effect from 8 November 2006, when the backsliding period was reduced from 24 months to 12 months as part of the settlement of the DWP jobs, rights and services dispute. This change was achieved due to collective not legal action. There should be no doubt, or misunderstanding, that the reduction of the backsliding period was due to membership support for trade union solidarity and not the application of the law at work.

Legal advice received

The Group Executive Committee (GEC) is concerned that there should be absolute clarity that there is no known legal basis whatsoever for challenging the backsliding period.

Branches were advised by circular DWP/BB/54/06, issued on 22 May 2006, that Thompsons solicitors have confirmed that there is no basis to legally challenge the DWP backsliding period because of the Court of Sessions decision in Diosynth Ltd v Morris Thompson. The DWP backsliding period is:

  • A capability procedure not a disciplinary procedure
  • Published in detail in the attendance procedures available to all employees on the DWP intranet
  • Notified to individuals subject to the procedures

The Diosynth case was simply about the misuse of an expired six month disciplinary warning as a reason to dismiss an employee. However the DWP has a properly published backsliding period, notified to individuals when applied, which can be used as part of the dismissal procedures in individual attendance cases.

The legal position on backsliding was questioned again by the GEC in April 2007 in response to requests from branches but with the same outcome.

Thompsons solicitors have again confirmed that the current backsliding procedure “is not unlawful”. The suggestion that there is a legal problem may arise from a misunderstanding of the Diosynth decision which provides no basis for a legal challenge.

Union intervention essential

The GEC noted the attendance management policy and procedures, imposed in June 2006, as part of the settlement of the jobs, rights and services dispute, following a ballot of PCS members which endorsed doing so.

Noting the current procedures does not imply that PCS therefore supports the imposed attendance policy and procedures.

PCS continues to oppose procedures that put undue emphasis on the delivery of warnings rather than reduce, if not eliminate, the workplaces causes of sickness and support the right to sick leave when unable to work.

At the same time the purpose of PCS remains to provide every support for members. Union intervention is essential at each stage of the attendance procedure to safeguard against warnings, demotion or dismissal. Guidance for members and branches is published on the PCS DWP group website.

Current guidance includes:

DWP/BB/108/06 HR decision makers guide

DWP/BB/141/06 Attendance management backsliding

DWP/BB/006/07 Your attendance management rights

DWP/MB/007/07 Your grievance and trade union rights

DWP/BB/023/07 Attendance management and improvement warnings

DWP/BB/024/07 Attendance management and “one off” absences

DWP/BB/031/07 Attendance review meetings and trade union representation

DWP/BB/049/07 Consideration point reasonable adjustments

DWP/BB/51/07 New OHS contract and attendance management

Evidence for review

Employees have the right to use the grievance procedures when dissatisfied with a warning. Details of warnings that have been wrongly given, and not corrected under the grievance procedures, should be provided to PCS DWP group office. Evidence of problems with the operation of policy and procedures is needed to support the case for further improvements.

PCS will always support members not imposed policies and procedures.

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      5. Informal meetings for attendance management changes and PCS support for members
      6. Attendance review meetings and trade union representation
      7. From sick leave to welcome back discussions
      8. Attendance management backsliding procedure and the law at work
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      15. Attendance management and the employment equality (age) regulations
      16. Attendance management: clarification and confusion from 22 November 2007
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      20. DWP attendance management policy - unagreed, unfair and unacceptable
      21. Attendance management quarterly review meeting - April 2008
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      29. “One off” absences
      30. Manager’s Discretion and Twelve Special Circumstances
      31. Focusing on back pain – revised DWP advice
      32. Attendance Management Changes from 25 January 2010 - for Case Conferences, SCS Engagement and OHS Referrals
      33. From sick note to fit note – work focused sick leave procedures
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      35. Attendance Management - Return to work from long term absence & unfair dismissal
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