Sickness Absences

We will all be ill at some time during our working lives and we all expect to be treated fairly by our employer if we are ill.  It is important, however, for a business to actively manage sickness absences.

• There are two separate issues to consider: 
• the employee who has been off work for a long period of time due to ill health or disability; 
• the employee who takes short term absences on a regular basis. 
• Both forms of absenteeism can be difficult to manage and can be costly to any organisation. 
• Due to the very different nature of each form of absence, it will most likely be appropriate for you to manage them in different ways. 

Short Term Absences

What should I do? 

• Consider implementing a sickness absence policy including return to work interviews.
• Carry out a fair review of attendance records and the reasons for the absences.  If you discover any issues such as family or personal problems or long term health issues such as back problems, deal with them appropriately.
• Consider how you want to progress matters further.  Can you provide help and support or counselling or are the matters more persistent and disciplinary action is more appropriate.
• Involve your Occupational Health Consultant/Department if appropriate.
• Treat your employees fairly and equally.

Can I dismiss an employee for short term absenteeism?

There may come a time when you decide that you need to consider dismissing an employee.   

• If you want to consider dismissal if the situation does not improve, then provide appropriate warnings and follow the statutory disciplinary and dismissal procedures.  Dismissal should be the last resort and not your first option.
• It is important that you are very clear about the reasons why you are considering dismissing an employee.  Remember that procedural requirements differ for dismissal due to poor attendance, (conduct) and sickness, (capability and other substantial reasons). 

Issues to consider prior to dismissal:

• Have I considered the nature, length and effect of the absences?
• Have I considered the employee’s past performance and relationship with the organisation?
• Have I considered whether the absences are having an effect on other employees?
• Have I considered alternative employment?
• Have I followed the correct procedure?
• Is my decision to dismiss fair, balanced and informed in this particular circumstance? ]

Long Term Ill Health

Dealing with long term ill health is very different to dealing with short term persistent absenteeism. 

What should I do?

• Keep in touch with your employee.
• If their condition improves consider if they can return to work.
• Consider if you are able to offer them suitable alternative employment.
• Consider what their medical practitioner says.
• Obtain an opinion from your Occupational Health Consultant/Department.

Can I dismiss an employee for long term absenteeism?   

There may come a time when you want to consider whether you wish to keep an employee suffering from long term ill health on your pay roll or whether you feel it appropriate to dismiss them on the grounds of ill health (capability).

When considering any dismissal you must ensure that you follow the statutory disciplinary and dismissal procedure and that you follow a fair procedure in all the circumstances.

What should I do before I decide to dismiss?

• Consult with the employee
• Carry out a medical investigation
• Consider the employee’s opinion
• Consider the possibility of offering alternative employment

Watch Out!

Remember you are subject to the Disability Discrimination Act 1995. (“DDA”)

If an employee has any physical or mental impairment which has or is likely to last for a long period of time, and has substantial or long term effects on their ability to carry out their normal day to day activities the employee may be considered disabled for the purpose of DDA.  Employees suffering from cancer, HIV infection or multiple sclerosis will be classed as disabled.

If so, you need to be particularly careful not to treat that person less favourably than any other employee.  Be wary that dismissal as a result of a disability may constitute less favourable treatment.  If you dismiss an employee on the basis of their disability, this is not only unfair but is likely to result in a discrimination claim with an award of compensation which is potentially unlimited.

For further information and advice, please contact lead Partner, Carol Shaw.

Carol Shaw
Partner

John Spratt
Partner

Hitendra Patel
Partner

Debra Wetters
Solicitor