An absence too far

Persistent short-term sickness absence is one of the most common problems
that employers face, but it is essential to get procedures right if dismissal
is contemplated.  By Linda Goldman and
Joan Lewis

Persistent short-term absence is an expensive item in the budget of many
employers. Getting cover is difficult as there is no forward planning for the
incident or illness and, by the time it can be arranged, the employee is back
at work, usually within the duration of a self-certificate.

The human resources department may wish to involve occupational health
personnel in investigating whether or not the absences relate to genuine
illness or malingering. An underlying medical condition may give rise to the
need for reasonable adjustments to be made to comply with the Disability
Discrimination Act 1995.

Fitness for work

Under the Employment Rights Act 1996, the dismissal of an employee who is
medically unfit for short or prolonged periods is potentially fair, since it
relates to capability for carrying out the work that person was employed to do.

Incapacity may be a sufficient reason for dismissal but fair procedures must
be used, including overall determination of fitness for work. The occupational
health team should be involved in considering the nature of the condition(s)
and examining medical certificates to ascertain whether there is any link
between the various illnesses described by the employee.

Hopefully, the human resources team will have already checked to see if
dental emergencies, migraines or back strains have a habit of occurring either
side of the weekend, public or individual holidays, or other hot targets for
extending leisure time. HR should also have checked whether absence levels are
significantly higher than that of other members of the workforce.

Endemic short-term sickness absence in a business may be symptomatic of
sick-building syndrome or excessive organisational stress factors.

As all employees are ill from time to time, they ought to know what will happen
to them when they take sick leave. The Employment Rights Act makes it mandatory
for employers to set out terms and conditions relating to sickness absence.

The statutory minimum for ill health remuneration is statutory sick pay
(SSP), payable after a three-day qualifying period. Individual contracts of
employment may provide for better terms but may also exclude payment for
non-qualifying absence. Therefore, a person frequently absent for a day or so
may lose out financially.

Any clauses relating to non-payment for absence should be carefully worded
to avoid claims for unlawful deduction of wages. Also, any policy relating to
non-payment should be applied rigidly to avoid any possible claims of
discrimination arising from a perception of differential treatment under any of
the current legislation on the grounds of sex, race or disability.

What can the matter be?

The Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604)
state that the diagnosis of the disorder preventing attendance at work
"shall be specified as precisely as the doctor’s knowledge of the
patient’s condition at the time of the examination permits". But,
"the diagnosis may be specified less precisely where, in the doctor’s
opinion, a disclosure of the precise disorder would be prejudicial to the
patient’s wellbeing, or to the patient’s position with his employer".

A medical certificate that does not provide a diagnosis is of little use to
an employer who needs to know if intervention should be offered to assist an
employee to return to health, or whether the employee is ever likely to be fit
to carry out the work he or she was employed to do on a regular basis.

The Acas booklet, Health and employment of August 20001, states that,
whereas a certain amount of short-term sickness is to be expected in all
organisations, "this should not be assumed on an individual basis and all
sickness should be monitored".

The booklet further points out that frequent absence may indicate general
ill health or may be related to occupational hazard, work stress or a lack of
capability to do the job. It also suggests any investigation into the
employee’s condition should include reference to domestic problems.

Monitoring sickness absence

The company handbook should set out policies and procedures in relation to
sickness absence, stating the need to preserve data in relation to medical
matters. It should have a Data Protection Act consent form attached to allow
for storage of such personal data, unless the information to be retained is of
profound importance concerning life and death, or is for medical purposes.

It is useful for the handbook to specify the amount of sick leave that staff
can take before triggering absence control procedures, but the conditions
should not be set out so as to invite taking the notorious ‘sickie’. If a
company is introducing a policy on health, proper consultation should take
place with approp- riate worker representatives and arrangements should be put
in place to ensure the policy itself is monitored in addition to steps taken in
respect of individual absences.

An absence too far

The time may come when an employer will lose patience with the persistent
short-term absentee but a decision to dismiss should not be rushed.

There is always a risk that short-term absences are an indicator that
someone is suffering from an underlying condition which could come within the
protection of the Disability Discrimination Act.

In order for a dismissal to be fair, a tribunal will consider the nature,
length and frequency of the absences, the feasibility of short-term replacement
cover and whether the employee was given any prior warning that his or her job
was on the line.

Proper investigation

Although an employee who pretends to be ill is committing an act of gross
misconduct, all cases must be investigated properly to obtain the facts. The
best way is to proceed on the basis that the illnesses are genuine and to
follow the course described in Lynock v Cereal Packaging Ltd, 1988, IRLR 510:
an employer faced with a series of persistent short-term absences should carry
out an investigation based on "sympathy, tact and understanding".

The mere fact that an employee is fit at the time of dismissal is only a
part of the picture. All cases need proper, albeit sensitive, investigation in
which it is recommended that a medical, rather than a disciplinary, approach is
taken.

Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for ACT Associates & Virtual Personnel.

Joan Lewis is the senior consultant and director of Advisory, Consulting
& Training Associates and Virtual Personnel, employment law and advisory
service consultancies.

Reference

1. www.acas.org.uk

Case roundup

Dismissal deemed to be fair
Taylorplan Catering (Scotland) Ltd v McInally, 1980, IRLR 53, EAT

M was a barman at a remote leisure facility for workers on
leave from oil rigs. He developed a depressive condition arising from his
unusual and stressful work environment and was dismissed because of persistent
absences. The Employment Appeal Tribunal upheld his dismissal as fair.  There was an implied term in his contract of
employment that he should be of ‘robust health’ since the job demanded a high
level of reliability. It was impossible to provide cover for absence because of
the location of his workplace.

Unfair dismissal overturned
Rolls Royce Ltd v Walpole, 1980, IRLR 343, EAT

W’s absence levels were 50 per cent in the three years
preceding his dismissal. He was warned and counselled about his absence in the
first year but no further attempts were made over the next two years to
investigate his persistent short-term absences. The dismissal was unfair on the
facts but the decision was overturned on appeal as it was a reasonable response
to the levels of absence. The EAT said: "… frequently there is a range
of responses to the conduct or capacity of the employee … from and including
summary dismissal downward to a mere informal warning,  which can be said to have been reasonable."
The clear warnings in the earlier stages of absence and the full investigation
of the case were sufficient to render the dismissal fair even though there had
been no recent counselling.

Extended leave
Velayduhan v Ford Motor Company Ltd, COIT 1327/220, in IDS Employment
Law Supplement 71, 1994

F doubted that V had provided a genuine medical certificate
when he took eight weeks leave to recover from "anxiety neurosis".
His level of absence in the previous eight years was insignificant. In the year
of his dismissal, he was refused extended leave to go to India to visit his
family. F dismissed him when it learned that, during his sickness absence, he
was in India. The dismissal was unfair because the employer failed to check
with the doctor that V had acted on medical advice to stay with his family
while he was ill.

Withdrawal of sick pay
London Clubs Management Ltd v Hood, 2001, IRLR 719, EAT

H was a casino employee who developed cluster headaches. He
received discretionary sick pay for his frequent short-term absences until 1999
when a high level of sickness absence in the entire workforce led to withdrawal
of discretionary sick pay. H complained that he was disabled by his condition
and had suffered a detriment by reason of withholding of pay. He won his case.
EAT upheld the employer’s appeal but agreed that he was disabled. EAT remitted
the case to the Employment Tribunal to decide whether there was any reasonable
adjustment which could have been made to accommodate his condition. The
withholding of pay was a matter of general effect on the workforce and not
related to his particular condition but the case had to go back to the
Employment Tribunal since its findings were not adequate to show whether H had
been placed at a substantial disadvantage compared to non-disabled employees.

All in the mind?
Rugamer v Sony Music Entertainment UK Ltd, 2001, IRLR 644 EAT

This is one of two cases covering the question of whether
persons are disabled when functional overlay causes physical symptoms. Neither
applicant claimed mental impairment. The Employment Tribunal held that the
applicants were not disabled. The applicants appealed saying that the tribunal
should have looked at the effect of the overlay on the physical condition and
considered that there was a mental impairment even though this had not been
claimed.

The EAT, relying on social security law, held that a physical
disability requires proof of a specific condition, not a mere effect. The new
complaint of mental impairment was not one the tribunal had to consider since
they only needed to deal with the complaint actually brought. Had the complaint
been raised at the right time, the tribunal might have had some difficulty in
finding the applicants were disabled without knowing the "clinically
well-recognised illness" from which they suffered.

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