Irwin Mitchell | Employment Law Update | Frequently asked questions … managing absence

We address some of the tricky issues that can arise when employees are off sick.

Q1: Can we treat absence as a form of misconduct and discipline staff with poor attendance?
Q2: Can we safely dismiss staff with poor attendance if they have less than two years’ service?
Q3: A member of staff has been signed off sick but has been seen in the cinema and at a colleague’s party. Can we dismiss them?
Q4: We have an absence management policy that includes trigger points for disciplinary action to be taken. Do we have to ignore those absences caused by an individual’s disability?
Q5: A member of staff has been signed off sick for four weeks but wants to return to work early. What should we do?
Q6: How long does an employee have to be off sick before I can fairly dismiss?


 Q1: Can we treat absence as a form of misconduct and discipline staff with poor attendance?

Genuine absence is not a form of misconduct and should be dealt with as a capability issue. Repeated short-term absence may be dealt with differently to long–term absence. In either case, you must follow a fair procedure which will usually include issuing a series of warnings before you consider dismissal. The final written warning should make it clear to the employee that they may be dismissed if their attendance does not improve.

If the employee has a “disability”, i.e. - a physical or mental condition which has a long-term and substantial effect on their ability to carry out day to day activities, then you will need to undertake some additional steps to avoid discriminating against the employee. This is likely to include obtaining medical advice as to when and if the employee can return to work, and to consider whether any adjustments could be made to enable them to do so such as undertaking lighter duties, a different role, flexible working, making adaptations to the workplace or providing specialised equipment.

Q2: Can we safely dismiss staff with poor attendance with have less than 2 years’ service?

That will depend upon whether or not the employee has a “disability” (summarised in Q1). This is because employees don’t need two years’ service to bring disability claims and can bring them from day one of employment (or even before if they think the recruitment process is discriminatory).

If the employee is disabled you will have to take a number of steps to avoid discriminating against them. You do not necessarily have to know that the employee has a disability before liability can arise. The Equality and Human Rights Commission’s Code of Practice emphasises that, "an employer must do all they can reasonably be expected to do to find out if a worker has a disability” by, for example, speaking with the employee or seeking medical advice.

Employees generally need two years’ service to bring a claim for unfair dismissal and providing there is no discrimination involved, you are free to dismiss an employee for poor attendance if they have less than one year and 51 weeks’ service. It is good practice to follow a fair procedure before doing so, although you might want to reduce the amount of time the employee has to improve, or simply move straight to a final written warning. If you have probationary periods in your contracts, you can review sickness absence as part of your probationary reviews.

Q3: A member of staff has been signed off sick but has been seen out at the cinema and at a colleague’s party. Can we dismiss them?

Employees who are absent for over a week generally have to obtain a fit note from their GP which should set out the nature of their illness and how long the employee is likely to be off work. You are required to accept a fit note at face value unless you have convincing evidence which casts doubt on whether the employee is genuinely ill.

Before you jump to the conclusion that this worker is pretending to be ill or exaggerating their symptoms, it is worth remembering that not all illnesses incapacitate a person to the extent that they need to stay in bed, or remain at home. This is particularly true of long term conditions, such as stress or depression.

Being able to go out and enjoy some social events is not necessarily incompatible with an individual being too ill to return to work. Clearly, you might want to ask some questions of an employee signed off sick due to chronic back pain who is able to run a marathon. It is unlikely to be reasonable however to ask the same employee to explain how he is able to walk around the shops or go out for dinner. Plus, some health conditions benefit from the individual taking exercise or getting out of the house and employees may be following their doctor’s advice.

Even if you have reasonable doubts about an employee’s condition, you must not make assumptions or accuse the employee of lying. If you do so, they may claim disability discrimination or resign and claim constructive unfair dismissal and, if you dismiss them, they may be able to claim unfair dismissal. For long term conditions, it is helpful to obtain a medical report which you may be able to use to challenge the employee’s assertion that they remain too ill to work. Generally, it is better to obtain a report from a health professional not treating the employee who can review the employee’s condition objectively through impartial eyes, rather than from the employee’s own GP.

For short term absences a return to work interview will give you the opportunity to enquire with the employee about the nature of their illness.

Q4: We have an absence management policy that includes trigger points for disciplinary action to be taken. Do we have to ignore absences caused by an individual’s disability?

You are entitled to manage ill health and absence within the workplace and a disabled employee cannot expect to be removed entirely from the scope of your absence management policy. Some policies already include provision to offset disadvantage to those members of staff with a disability. If yours doesn’t you should consider what adjustments you can make which might, for example, include extending the trigger points and allowing more absences before you start taking action.

Even if adjustments are made, the level of a disabled employee's absence may reach the point where dismissal on the ground of capability is a reasonable course for you to take. This is a particularly tricky issue and one where you should take advice.

Q5: A member of staff has been signed off sick for four weeks but wants to return to work early. What should we do?

This situation often arises when the employee is only receiving statutory sick pay or has exhausted more generous contractual sick pay and wants to return to work to minimise their financial losses.

You owe a duty of care to your staff. The starting point is to undertake a risk assessment to find out whether allowing this individual to return early potentially puts other members of staff at risk (as might be the case if they were suffering from a contagious disease or particularly virulent condition). If there is no risk, then you should go on to consider whether it is safe for the employee to return early.

The best course of action is to ask the employee to go back to their GP and obtain a fit note indicating that they can return to work part-time, or obtain confirmation that they are fit to go back to their previous duties.

If they can’t provide this you are perfectly within your rights to refuse to allow them to return to work early.

Q6: How long does an employee have to be off sick before I can fairly dismiss?

There are no hard and fast rules on how long an employee has to be off sick before you can consider dismissal on capability grounds. This will depend very much on the impact on the employee’s continued absence on the business, and when they are likely to be able to return. For example, if the absent employee is employed in a key technical role within the business, and covering their absence on a temporary basis is particularly difficult, then an employer may be justified in dismissing on capability grounds to enable a permanent replacement to be sought sooner rather than might be expected in the case of, say, a member of administrative staff, whose absence can be more easily covered. The employee’s length of service will also be an important factor. You are expected to be more tolerant of absence with a long-serving member of staff than with someone who hasn’t been with you very long. If the employee is likely to be fit to return to work in the near future could you wait for them? If not, why not? It is often easier to justify dismissing someone when you don’t know when (or indeed if) they will be able to return to work.

A capability dismissal should be seen as a last resort and as with any dismissal a fair procedure will also need to be followed. For those on long-term sick, consider whether ill-health retirement may be an option, or whether they may qualify for payments under any insurance policies you may provide for staff. 

If an employee has a “disability”, i.e. - a physical or mental condition which has a long-term and substantial effect on their ability to carry out day to day activities, then you will need to undertake some additional steps to avoid discriminating against the employee. This is likely to include obtaining medical advice as to when and if the employee can return to work, and whether any adjustments could be made to enable them to do so such as undertaking lighter duties, a different role, flexible working, making adaptations to the workplace or providing specialised equipment.


Employment Law Update - February 2016

Key Contact

Kirsty Ayre