This is a basic guide for employers to use when handling sickness absence issues in the workplace. The threat of disability discrimination makes this area highly sensitive and following the guide will not guarantee that you avoid discriminating against disabled employees.
Aims of the policy
In all instances of absence the employee should follow the company’s contractual sickness absence procedure for notifying and certification of absence.
New minimum statutory dismissal procedures are set out in Schedule 2 of the Employment Act 2002 and must be followed by all employers where they contemplate dismissing an employee. This will extend to instances where the employer contemplates dismissing an employee for reasons relating to their health.
Failure to follow the appropriate procedure may result in the dismissal being classed as automatically unfair. Following the procedure, however, does not guarantee the dismissal will be fair, as it is still subject to principles of equality and fairness.
It is important that the company does not use its disciplinary procedure when handling sickness absence issues as this may result in the dismissal being considered unfair by an employment tribunal.
The overriding aim of the policy is to assist the employee return to work after a long absence or reduce the number of instances of absence. All steps in the procedure should be used to identify problem areas and attempt to agree steps to redress the problem.
Who is it for?
Short-term absenteeism – An absence policy should set out the procedure to be adopted when an employee has an unusually high frequency of short term absences.
Long-term absence – This is usually defined as a period of absence in excess of two weeks.
Essential elements
Short-term absence – If an employee has a number of short-term absences they should be invited to attend a meeting. At the meeting you should:
- Find out the reason for the employees absence
- Enquire about the nature and extent of any illness
- Agree that absence will be monitored over a specific period.
- The employer should consider whether the employee could have a disability or whether there are any reasonable adjustments which can be made or alternative positions that will help the employee to overcome their health problems.
At the end of any agreed monitoring period the employee’s attendance should be reviewed. If you believe that the matter needs further investigation you should seek medical advice.
The company may decide that a further period of review is necessary to be able to make a decision. The employee should be advised what improvements to their attendance are expected during that period and warned that dismissal is an option if absence levels do not improve.
Before dismissing the employee you must follow the standard procedure set out below. Failure to do so will amount to an automatically unfair dismissal.
Employers should beware that dismissing an employee because of a disability or a failure to make a reasonable adjustment could lead to a claim of disability discrimination against the company, with potentially unlimited compensation.
Long-term absence
As with short-term absence the company should arrange to meet the employee. At the meeting you should review the current medical situation, existing medical advice, the need for further medical evidence, and if applicable, a period of further review.
If the employee continues to be absent from work for ill-health you should hold a further review meeting at a reasonable interval to discuss any new medical evidence and to outline company proposals concerning the employees continuing employment.
It may be necessary to have more review meetings in order to explore all options and obtain up-to-date medical information before making any decisions.
If applicable, the employee should be advised that you may consider dismissing them on grounds of ill-health. Before dismissing, you should look at alternative options such as redeployment, and consider whether the employee is suffering from a disability and whether there are any reasonable adjustments that can be made.
Before dismissing the employee you must follow the standard procedure set out below.
Best practice
Statutory minimum dismissal procedures – the standard procedure
The standard three-step dismissal procedure is a compulsory procedure that you must follow in order to lawfully dismiss an employee.
1 The written statement
The company must send the employee a statement setting out the circumstances that have led the company to contemplate dismissing the employee and inviting the employee to a meeting to discuss their record of absence.
2 The hearing
When arranging the hearing bear in mind that:
- The hearing date should allow the employee time to think about the written statement but it should not be unnecessarily delayed.
- The employee has the right to be accompanied to the hearing by a work colleague or trade union official.
- The hearing must be at a reasonable time and in a convenient location.
- After the hearing you should inform the employee of your decision, offering them the opportunity to appeal against that decision.
3 The appeal
If the employee wants to appeal he or she must inform the company. The company should then arrange a meeting to hear the appeal. The same rules apply to this meeting as to the hearing.
Following the appeal meeting you should inform the employee of your decision, making clear that it is final.
Grey areas
Disability discrimination – The Disability Discrimination Act 1995 defines disability as: “Any physical or mental impairment which has a substantial and long-term adverse affect on ability to carry out day-to-day activities.”
All employers should be aware that the definition of disability will incorporate many common problems such as bad backs or depression and stress. It will also cover illnesses such as HIV/Aids or cancer from the point of diagnosis.
There are four possible offences under the DDA:
- Direct discrimination
- Disability related discrimination
- Failure to make reasonable adjustments
- Discrimination by way of victimisation.
In the context of sickness absence the two areas that cause employers most concerns are disability-related discrimination and a failure on their part to make reasonable adjustments.
Disability Related Discrimination
DDA section 3A(1) – “… a person discriminates against a disabled person if:
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats, or would treat, others to whom that reason does not, or would not, apply; and
(b) he cannot show that the treatment is justified.”
Thus, if the reason for dismissal is absence, and the employee has a disability which is causing their absence this will amount to discrimination unless the dismissal can be justified.
It is important to note that an employerÕs lack of knowledge of the disability is irrelevant to the question of whether an individual is treated less favourably.
Section 3A(3) of the DDA suggests discrimination will only be justified – ” …if, and only if, the reason for it is both material to the circumstances of the particular case and substantial.” (Material here means reasonably strong and substantial means having real weight and Ssubstance.)
It is clear that justification requires an employer to have exhausted all other options and taken steps to help the disabled employee whereever possible.
Duty to make reasonable adjustments
Section 4A(1) of DDA requires an employer to make reasonable adjustments.
“Where –
(a) any provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer, leave the disabled person at a substantial disadvantage in comparison with persons who are not disabled”.
The legislation does set out factors to which a Tribunal is to have regard to when determining the reasonableness of any proposed adjustment. They include:
- The extent to which making the adjustment would prevent the discriminatory effect
- The extent to which making the adjustment is practicable
- The financial and other costs incurred in making the adjustment
- The level of disruption to business activities caused by making the adjustment
- The extent of financial resources available at the company
- The availability of help or financial assistance making the change.
The DDA also sets-out steps which might need to be taken to comply with the duty:
- Adjustments to premises
- Allocating duties elsewhere
- Transfer to fill an existing vacancy
- Altering hours, work or training
- Allowing absence for rehabilitation, assessment or treatment
- Mentoring
- Acquiring / modifying equipment
- Modifying instructions / reference manuals
- Modifying procedures for testing or assessment
- Providing supervision or other support.
It is clear that a failure on the part of the employer to consider reasonable adjustments will result in the dismissal of a disabled employee being regarded as unjustified discrimination. The series of review meetings detailed in this guide allow the employer ample opportunities to sit down with the employee and consider adjustments that will help to alleviate the effect of their disability. Perhaps the most obvious and important of these is the possibility of alternative employment.
When considering possible alternative employment, employers should be aware that:
- Failure to consider alternative employment may make a dismissal unfair
- There is no obligation to create a job where none exists, but the employer must be flexible
- The employer must consider alternative vacancies up to date of termination
- It is essential to consider making reasonable adjustment in cases of disability.
Employer protection
Always keep accurate records of absence (including details of all meetings/conversations to discuss the problems).
Ensure that line managers or those who will deal with issues on the front line are aware of the correct procedures and, where appropriate, have received adequate training.
Be aware of the possibility that a disability is causing the employeeÕs absence and be prepared to make reasonable adjustments and consider alternative employment.
Key Legislation
- Employment Act 2002
- Employment Act 2002 (Dispute Resolution) Regulations 2004
- Employment Rights Act 1996
- Disability Discrimination Act 1995
Links
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ACAS – www.acas.ork.uk
Department of Trade & Industry – www.dti.gov.uk
Disability Rights Commission – www.drc-gb.org
This note is for general guidance only and should not be relied upon without advice about your specific circumstances.
