Sickness Absence
Excessive sickness absence can be a major headache for employers to deal with. It can also be demotivating for other employees. Firstly there is the challenge of record keeping and ensuring that you keep properly documented sickness records. Then there is the further challenge of ensuring that you apply a consistent policy across the board. Having a robust and consistent approach to employee absences will help.
Formulate your rules on sickness. What will you expect staff who are absent because of illness or injury to do? What level of time off would you normally tolerate? Have a sickness absence process and ensure that this is followed. Write it into contracts of employment. For example, include an obligation to notify you immediately the employee is aware that they are going to be absent. You could state that the notification should be by telephone call, and that a text is not considered appropriate.
The next stage could be a “return to work” meeting with a manager after a number of absences in a fixed period of time. This could then lead to formal action under your “capability process”.
Capability process
Capability is a potentially fair reason for termination of employment under the Employment Rights Act. “Capability” usually means the capability of an employee to undertake the work which they are employed to do and includes being incapable due to excessive or extended time off due to illness of injury.
However, an Employment Tribunal would expect an employer to have followed a reasonable process before reaching a decision to terminate employment on the grounds of not being “capable” . This would include taking reasonable steps to get to the bottom of any medical condition or illness (if necessary obtaining a medical report from a GP or an Occupational health provider), consulting with the employee over the contents of such report, and considering any ways in which an actual dismissal could be avoided, for example is it possible for the employee to return on light duties, on lesser hours initially or to modified duties?
There may also be disability discrimination obligations if there is an underlying physical or mental impairment. If the employee suffers from a physical or mental impairment which is long term, then the disability discrimination provisions in the Equality Act 2010 might become relevant. There may be risks in taking actions to dismiss or impose disciplinary sanctions and the duty to make reasonable adjustments to try to accommodate the disabled worker may arise.
We recommend a three pronged approach:
- Stage 1 – keep accurate and up to date records and ensure that you take steps to follow up when an employee takes time off due to illness – take the time to ask an employee to come to a documented return to work meeting where you can ask the reasons for the absence, point out the reasonable requirements of the business for attendance levels and the effect of unplanned absences.
- Stage 2 – a clear demarcation between uncertified time off or absence without permission/without correct notification of manager ( a potential disciplinary issue) and absence due to genuine illness (a potential capability issue when balancing the needs of the business).
- Stage 3 – a clear process for each stage, for example a formal process of warnings under the capability process, the obtaining of medical evidence and documented discussions with the employee.
There are also implications regarding the GP Fit Note and dealing with difficult cases such as absences by reason of allegations of workplace conflict or “stress”. We are all too familiar with the disciplinary hearing that keeps being postponed because of stress at work.
Disclaimer – The contents of this page are provided for general guidance only and do not replace the need to obtain legal advice about any given situation.
