Absence minded

Dealing with persistent absenteeism can be a real headache for personnel
managers who must tiptoe their way around medical reports, disciplinary
procedures and, of course, the Disability Discrimination Act. Ian Yonge
diagnoses some of the most troublesome problems that can arise

Scenario 1

Mr Wellbeloved is the newly appointed personnel officer of Plumbum Oscillans
& Co, makers of widgets. His first case is Mr Pettifog, a key employee, who
has been repeatedly absent with a number of unrelated and obscure conditions,
the last being caused by a bungee jump which went wrong. Pettifog has received
warnings that his attendance must improve. It has not. Pettifog refuses to
agree to a medical report and so in some trepidation and under pressure from
the management, Wellbeloved dismisses him. Pettifog goes to a tribunal and
complains of unfair dismissal but to Wellbeloved’s relief he loses.

Ian Yonge comments:  A
tribunal in a similar case ruled that it would be placing too heavy a burden on
an employer to carry out a formal medical investigation. No further examination
by a doctor could have helped them, and such an investigation would not have
been fruitful bearing in mind the intermittent nature and different causes of
his absences. Even if a medical report could have been of assistance, if the
employee refuses to agree to it, this should not mean that the company cannot act
without one.

Scenario 2

Thus emboldened Wellbeloved acts decisively when he receives a medical
certificate for an employee who has previously had an impeccable sickness
record. The certificate says he is suffering from angina pectoris. Wellbeloved
looks this up in the medical dictionary, decides the employee’s illness is
terminal and dismisses him.

Ian Yonge comments:  This time
the tribunal is likely to find the dismissal was unfair, as the company should
have invited the employee to submit to a further medical examination. The first
case is a strong one because the decision has been taken on employment grounds
and clearly Pettifog’s absences have become commercially damaging. The second
is not, because Wellbeloved has acted as doctor, which is not within his sphere
of knowledge.

Scenario 3

Ms Sharp has been off work for several weeks. Wellbeloved decides that Ms
Sharp is never going to come back and so, to save the statutory notice money he
would have to pay if he dismissed her, writes to her without any discussion or
warning. Wellbeloved says that the employment contract is terminated by
frustration, ie because of circumstances, but through no fault of either party.
She goes to the tribunal and wins.

Ian Yonge comments:  Frustration should only be claimed in the rarest of circumstances.
It is only in the case of a devastating, catastrophic illness from which there
is no possible chance of a meaningful recovery that a tribunal would hold that
it was reasonable to terminate a contract on such grounds.

Where there is a possibility that the employee may be able to return and if
their absence is not commercially damaging, the tribunal will undoubtedly
decide this kind of action constitutes unfair dismissal. Not to consult with an
employee will often be fatal to the employer, and just assuming that there is
no explanation or mitigating factor the employee can put forward is equivalent
to dismissing for misconduct without going through a warning procedure.

Scenario 4

Wellbeloved is startled to see Mr Whiney, who has provided a current and
genuine sick note, taking part in a demonstration organised by the National
Union of Master Widget Makers, on television. Wellbeloved is not sure what to
do, as there is a sickness note but in the end decides to end the employment.

Ian Yonge comments:  The Court
of Appeal has ruled that even where there is a sick note. If in fact there is
evidence that the employee is fit for work then dismissal could well be
justified. The court ruled "It cannot be said that it is not reasonable
for employers to go behind a sick note, if employees are doing things away from
business which suggest they are fit for work, then that is a matter which
concerns employers."

Scenario 5

The managing director says he wants to dismiss Miss Flat for poor
attendance. However, the union has said that the reason for the regular
absences is an ongoing medical problem. Wellbeloved looks at her pattern of
absence and decides he can dismiss on medical grounds. The company loses the
resulting tribunal case.

Ian Yonge comments:  The
company might have been able to dismiss on either conduct (absence) or medical
grounds. The dismissal was unfair because they did not go through a
disciplinary procedure for poor attendance. Neither did they obtain a medical
report on her underlying condition, which was the reason for the absences. Wellbeloved
has fallen between two stools.

Scenario 6

To avoid a compensation payment, the company agrees with the tribunal
reinstatement order and Miss Flat comes back to work. For a time all goes
fairly well. Then she complains of stress brought on by the need to increase
the production of widgets, and nausea caused by fumes in the production
process.

She is advised to go to her doctor and get medication. She does this but her
symptoms become worse and one day Miss Flat becomes confused on the production
line and bodges a run of widgets.

She asks for a different job, perhaps as a quality control officer, a post
that does not exist at Plumbum. Mr Wellbeloved knows his Disability
Discrimination Act and is sure he is not obliged to create an artificial job,
and thus turns down her request. He also turns down her request for an
air-conditioned sterile work section to be built. Mr Wellbeloved now believes
the situation is clear-cut. Miss Flat is a whinger, she has been paid to go to
her doctor but still she gets worse. Her employment should be terminated. Miss
Flat returns to the employment tribunal. It is held that the dismissal is
unfair.

Ian Yonge comments:  Wellbeloved has made no effort to consider whether there were any
mitigating factors or whether the working environment was a possible cause.
Fumes in the production process caused the nausea, so the company was to blame.

In addition, the company has a duty to take care of the mental health of
their staff.

While the company did not have to create a job, or go to inordinate lengths
under the DDA, it should have made reasonable efforts to accommodate Miss Flat.
Wellbeloved should have considered whether a slight change in working
conditions or another existing post in the company would have been suitable.

Scenario 7

At this point Mr Wellbeloved goes on long-term sick leave and in due course
goes onto the company’s long-term disability policy. Shortly after, the
managing director adds up the cost of the tribunal awards made during Mr
Wellbeloved’s tenure. Noting that he is now beyond the six month period after
which the employment of senior executives can be terminated for ill health, he
ends the employment.

Mr Wellbeloved’s insured disability payments then stop, as he is no longer
an employee. He takes the company to court, and is awarded a suitably massive
sum in compensation which keeps him going nicely, until he can claim his
ill-health early retirement pension.

Ian Yonge comments:  By
terminating Wellbeloved’s contract the company has stopped him receiving a
contractual entitlement and he is thus entitled to compensation for breach of
contract. It can be costly to dismiss employees on long-term sickness cover.

Ian Yonge is an employment law specialist with consultancy William M
Mercer

Sick notes

– Though warnings are not relevant in sickness terminations, consultation
is.

– Consider suitable alternative employment.

– Consider disability discrimination and make reasonable efforts to
accommodate requests for adjustments.

– Where employees could be dismissed for either misconduct or sickness,
follow the correct procedure.

– Only in very rare circumstances should a contract be treated as
frustrated.

– Never act as doctor.

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