Managing Employee Sickness - A Legal Perspective

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Unexpected absence due to sickness can cause employers their own headache. However, few want to challenge an employee when ill and fewer still are prepared to take action up to and including dismissal. Below we consider how we can safely tackle persistent short term and long term absence.

Legal risks

The two most common claims that can arise from absence-related dismissals are unfair dismissal and disability discrimination. To defend an unfair dismissal claim, the employer needs to show a fair reason to dismiss, the decision is reasonable in the all the circumstances and they have followed a fair procedure. In response to a disability claim, the employer will need to either show there is no disability, no discrimination or, where possible, that any discrimination that has taken place is justified.

A further potential disability claim is for a failure to make reasonable adjustments. So, if an employer dismissed an employee for their sickness when they could have changed their employment terms to reduce the level of absence, the employer could end up in hot water.

What happens if you get it wrong?

The maximum award for an unfair dismissal claim is £78,335 or one year’s salary/benefits. The employee will also be entitled to a basic award of up to £14,250. Awards in discrimination cases are uncapped. Employees can receive an award for injury to their feelings. This varies based on the severity of the discrimination. The maximum award for injury to feelings is £33,000.

Persistent short term absence

If an employee is persistently off sick, the first step is to have a meeting with them to understand why. At the meeting, the employer should assess whether there are any underlying medical conditions connecting the absences. If so, take medical advice to assess whether this is a disability before taking any further corrective action. If the employee has a series of different reasons for absence without any pattern, you may be able to proceed with a warning.

When giving any warnings, you should follow your disciplinary procedure or your absence procedure if you have one. This will roughly follow the process of an investigation, a disciplinary or capability meeting and, if appropriate, giving them a warning. You must confirm in the decision letter what improvements you expect to see from the employee in the future. If persistent absence continues, then you may need to continue with the disciplinary/capability steps which may result in their dismissal.

Long term absence

As with persistent short term absence, the first step is to meet with the employee to discuss their situation and medical conditions. This will usually be followed up with a referral for a relevant medical opinion. What then follows will depend on the outcome of the medical report. On receipt of this, you should normally send the report to the employee and then hold a meeting to go through it. Again, the content of the report will drive the discussion. You will need to consider whether there are any adjustments that need to be made to help reduce the affect of their disability and help them return to work.

Further medical information may be required. If the prognosis is that no further adjustments can be made and it’s unlikely the employee will return in the foreseeable future; then termination can be considered. It is important to understand that there is no one-size-fits-all here, so you need to assess and reassess at the end of each process. Whether dismissal is reasonable will be considered on a wide range of factors, including whether there is permanent health insurance, the employee’s length of service and whether you should wait longer before dismissal.

Dismissal

If, following one or more rounds of medical advice, you conclude that the employee's attendance at work absence is unlikely to reach a satisfactory standard (even with adjustments), then you may look to dismiss. The process is very important. It includes the need for an investigation and a dismissal meeting. You should ensure that all evidence is considered and set out at the meeting, including the medical evidence and the reasonable adjustments that have been implemented. The letters and documents to be used are key; for example both the invite to meeting and decision letter should clearly set out the evidence you will consider and why dismissal is being considered.

Medical evidence

Medical evidence is vital and could mean the difference between an employer’s dismissal being found unfair/discriminatory or not. In our experience, the value of the report is almost entirely governed by the quality of the referral letter and the questions to the doctor that it contains.

Take advice from a solicitor at every turn however, if you will use a solicitor for only one part of this process, instruct them to prepare the referral for you. This will be time and money well spent.