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
appropriate 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.

This article first appeared in the February 2002 edition of Occupational
Health magazine.  To subscribe click here

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