Persistent
short-term absence can be trickier than the long-term kind for HR practitioners
to deal with. david morgan recommends the best way forward to minimise the
legal risks
The
average British employee took just over a week off work last year, according to
a recent study by the CBI. The average cost of that absence was £434 per
employee which gives a total cost of £10.7bn. In addition to the financial
cost, absenteeism also has a detrimental effect upon employee morale, customer
satisfaction, productivity and production quality.
While
every employer is familiar with the financial costs and disruption associated
with long-term employee absence, short-term persistent absences – often by
repeat offenders – can be even more inconvenient to the business and more
difficult to manage from an employment relations perspective. The onus is on
the employer to be proactive in taking steps to assist an employee’s return to
work while, at the same time, setting down transparent guidelines for the
standards of attendance.
There
will, however, come a time when absenteeism causes employers to say
"enough is enough" and take the decision to dismiss. An
industry-specific attendance procedure tailor-made to the needs of the business
is vital to avoid costly claims of unfair dismissal and disability
discrimination.
Conduct
or capability?
In
defence of a claim for unfair dismissal, employers must establish the principal
reason for dismissal, which must be one of the potentially fair reasons, namely
conduct, capability, redundancy or breach of a statutory requirement. Failing
which, the reason must fall within the catch-all "some other substantial
reason" for dismissal.
The
problem is that for years, the courts and tribunals, not to mention employers,
have had difficulty in establishing the appropriate reason for dismissal in a
case of short-term persistent absence as it does not sit squarely with either
capability or conduct.
Put
simply, if a fit employee has a number of sporadic certified absences but
continually returns to work, he could hardly be said to be
"incapable" of doing the job for which he is employed. Likewise, if
an employee presents a medical certificate for an absence which was genuinely
on the grounds of ill health, his behaviour could not properly be construed as
misconduct justifying disciplinary intervention. In contrast, where an employer
has reason to believe that the absence is not genuine, this should be dealt
with in line with the company’s disciplinary procedure following a full
investigation into the circumstances and reason for the non-attendance at work.
Sending
out an SOS… R
Where,
then, does this uncertainty leave employers seeking to manage absenteeism in
the workplace? All is not lost as the courts and employment tribunals have
upheld dismissals for short-term persistent absence as falling within the
potentially fair "some other substantial reason" (SOSR) defence to
unfair dismissal proceedings.
In
Wilson v The Post Office, 2000, IRLR 834 CA , the Court of Appeal approved the
defence of SOSR in cases of short-term absenteeism. Given the importance of
service delivery to its business, the Post Office has an attendance procedure
with a number of defined stages agreed with its trade unions and disseminated
throughout the workforce. Wilson was dismissed for failing to meet the
standards set out in the procedure after a number of warnings. The procedure
was intended to reduce levels of absence and was corrective rather than
punitive. It fell outside normal disciplinary procedures.
The
employment tribunal which heard the case at first instance held that the
dismissal was unfair because, Wilson’s absences being genuine, the dismissal
must be by reason of capability. As Wilson had been declared fit by the company
doctor and had returned to work, it was unfair to dismiss him by reason of lack
of capability. However, the Court of Appeal held that Wilson’s dismissal could
fairly be categorised as SOSR. He had failed to meet the standards set out in
the contractually agreed attendance procedure and this was the reason for
dismissal. The court remitted the case back to be heard before a fresh
employment tribunal to consider whether, on the facts of the case, the company
had acted reasonably in treating SOSR as the reason for dismissal.
The
reasonable employer
Having
established SOSR as the reason for dismissal, the second prong of an unfair
dismissal case requires employers to establish that the decision to dismiss
fell within the "range of reasonable responses" open to a reasonable
employer under section 98 (4) of the Employment Rights Act.
In
the latest Acas code of practice on disciplinary hearings, it is recommended
that absence is dealt with outside normal disciplinary procedures. The key to a
fair dismissal for short-term absence will be in the implementation throughout
the company of an attendance procedure. Ideally, the procedure should form part
of the terms and conditions of employees’ contracts of employment. It should be
introduced in a spirit of consultation with the workforce and, if appropriate,
a recognised trade union. Employees must be made aware of the standards
expected of them and the consequences of failure to meet them.
Employers
should take into account the following when managing absenteeism and before
giving consideration to dismissal:
–
Employees must be given appropriate warnings (albeit non-disciplinary) that
dismissal may result if their attendance record does not improve.
–
Employers must carry out a full and fair review of the employee’s attendance
record and the reasons for the absences.
–
Employers should consider whether there is an underlying medical condition
which may preclude them from proceeding to deal with the case under the
attendance procedure. They must take a medical opinion from the company doctor,
the employee’s GP and, or, an independent medical specialist.
–
The impact of the Disability Discrimination Act must be considered (see box).
–
The employee must be given any opportunity to make representations in his
defence at every stage of the procedure and certainly before the decision is
taken to dismiss. Line managers should meet personally with the employee at a
return to work interview following each bout of absence and before issuing a
formal warning.
–
If, following warnings, the employee’s attendance record does not improve,
consideration should be given to dismissal, taking into account the employee’s
length of service, performance, the effect of past and future absences on the
business, and the likelihood of attendance improving in the future.
Drafting
an attendance procedure
–
Employers will be on stronger grounds to defend employment tribunal proceedings
if the procedure forms part of the terms and conditions of employment.
–
The standards expected must be disseminated through training of line managers
and cascaded through to the operational grade employee.
–
The standards expected must be clearly set out. They should be accompanied by a
system of formal non-disciplinary warnings, for example a first stage warning
after three absences in a six month period; a second warning after three
absences or more in the next six months and finally consideration being given
to dismissal if a further three absences are incurred in the following six
months. The standards themselves will depend upon the particular industry
sector taking account of such matters as service delivery or production
requirements.
–
The implications of a failure to meet the standards (dismissal) must be set out
clearly.
–
Any absences by reason of disability or an accident at work should not be
counted towards the attendance record in terms of the procedure.
–
Every self- or medically-certified absence should be assumed to be genuine
unless there is reasonable belief that the employee is malingering, in which
case the matter should be fully investigated.
–
A system of return to work interviews should be built into the procedure to
ensure personal contact with the employee at every stage.
–
An employee should be accorded the right of appeal to a higher level of management
against a decision to dismiss.
–
A mechanistic approach should never be taken to the procedure and there should
be room for managerial discretion in individual cases.          n
David
Morgan is a solicitor in the Glasgow office of UK law firm McGrigor Donald
Disability
discrimination?
While
the Disability Discrimination Act is more significant in managing long-term
absence cases, it should not be ignored when dealing with sporadic absenteeism.
The DDA provides that if an impairment ceases to have a substantial adverse
effect on the employee, it nonetheless is treated as continuing to have that
effect if the effect is likely to recur. Therefore, conditions such as back
injuries or stress-induced ailments such as anxiety and depression may fall within
this category.
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The
failure to take into account the fact that an employee’s absence was caused by
a disability may result in a finding not just of unfair dismissal but also
disability discrimination, with potentially unlimited financial consequences. In
addition to the direct prohibition of discrimination on the grounds of
disability, an employer discriminates under the DDA if it fails to comply with
the duty to make a reasonable adjustment. Employers must make reasonable
adjustments to ensure that working arrangements do not place disabled employees
at a disadvantage by reason of their disability, as compared with other
employees who are not disabled, for example, altering the employee’s hours of
work, allocating some duties to another employee and allowing time off for
treatment or rehabilitation.
Employers
with fewer than 15 employees are exempt from the provisions of the DDA.
Furthermore, there is a defence of justification for disability discrimination,
in situations where the employer has a material and substantial reason for the
detrimental treatment/dismissal.
