Derek Kemp of Human & Legal Resources outlines how to deal with
persistent absence in the workplace
Despite HR professionals being well acquainted with the costs associated
with absence, they have to accept that organisations employ people, not robots;
and people will call in sick from time to time. But what if an employee’s
intermittent absence level becomes unacceptably high, or a long-term absentee’s
job needs filling on a permanent basis? Irrespective of whether we think
employees’ excuses are suspect or we have genuine sympathy for them, there
comes a time when action becomes necessary.
The process to be followed depends upon the nature of the absence record –
is it long-term or is it intermittent?
Persistent short-term absences from work
For a tribunal to recognise that an intermittent absence record is
unacceptable, there should be:
– A fair review by the employer of the attendance record and the reasons for
absence
– An opportunity for the worker to make representations
– Appropriate warnings of dismissal if things do not improve.
Of course, if investigations suggest that there may be an underlying medical
condition, the employer should seek proper medical opinion to determine the
extent and likely duration of the condition. If it becomes clear that the
nature of the condition is such that there is unlikely to be any improvement, the
case should then be regarded as one of long-term illness, and appropriate steps
should be taken (see below).
[Hint: We have all been tempted to question a GP over a sick note – don’t
bother, it is not worth the trouble.]
Although ‘warnings’ or ‘cautions’ may seem inappropriate in cases of
illness, they are a necessary measure. The following considerations have been
taken into account at both tribunal and Employment Appeal Tribunal (EAT)
levels:
– Nature of any illness
– Likelihood of reoccurrence
– Length of absences/spacing of good health
– How important the job is to the employer
– Impact of the absences on the team
– Adoption and the exercise of carrying out the organisation’s policy
– The requirement to take into account the employee’s views
– The employee’s awareness that the moment may be approaching when the
decision to dismiss may be made
– The general effect on output or sale (particularly important in smaller
organisations where there is less possibility of arranging cover for work)
– Special nature of employment, which may require a higher than usual level
of attendance or that employees be of robust health. This only applies where
there is a particular clause within the contract of employment. The dismissal
can therefore be deemed to be a result not merely of ill health, but for
failing to meet an essential requirement of the contract.
Assuming that the appropriate procedural steps (similar to your disciplinary
procedure) have been taken, the fairness or otherwise of the decision to dismiss
will boil down to the question of ‘whether, in all the circumstances, the
employer can be expected to wait any longer and, if so, how much longer’. This
is done by balancing the interests of the employer with those of the employee.
The employer must show that the sanction of dismissal is within the range of
responses that a reasonable employer would make. The decision to dismiss is an
employment decision not a medical one, to be made by the employer in the light
of the available evidence.
Other important factors to consider include:
– Any recent improvement in the employee’s attendance record
– The employee’s past and likely future service
– The importance of the job and the feasibility of employing a temporary
replacement
– Where an employee is in a key position, a shortening of the procedure may
be justified. However, a ‘key’ employee is only likely to be one without whom
the employer’s business cannot properly function
– The effect of continued absence or illness on other employees. Other employees
may be affected – such as where they lose a team bonus, or where an
individual’s ill health causes frightening or violent behaviour.
[HINT: If you have a generally high level of intermittent absences, we have
found it is possible to halve it by scrapping the self-certification form.
Replace it with a requirement for the employee to write a note (on their own
paper) to their manager for approval at the return-to-work interview. People
find it far harder to lie about their absence on their own paper than on your
form.]
Long-term sickness
The key to a fair dismissal is a fair procedure. Such procedure consists of
two elements:
– Medical investigation
– Consultation with the employee.
Sufficient medical enquiries should be made to enable the employer to make
an informed decision about the continued employment of the employee.
The first step is to ascertain the seriousness of the illness and its likely
length and effect. Often, though not always, this will involve obtaining a
medical opinion. It is essential for the employer to ascertain the precise
nature of the illness or disability wherever possible and a predicted period of
absence.
However, it is critically important that the employers do not rely on a
medical opinion alone. Employers must discuss medical information with the
individual concerned and should not set themselves up as medical experts – the
decision to dismiss is not a medical question, but an employment question to be
answered by the employer in the light of available medical advice. The first
medical opinion sought should be that of the employee’s own doctor.
The information normally requested is:
– the nature of the illness
– the expected period of absence
– the type of work the employee would be capable of upon their return.
[HINT: In some cases it is identified that the employee may be able to
return to work on ‘lighter duties’ or on a phased part-time basis. This is
often beneficial to all concerned and helps you assess what they are capable
of. However, it is worth setting regular reviews so the employee’s progress can
be monitored and the arrangements changed to reflect their recovery (or
otherwise) from the illness/condition.]
Extra care
Extra care is necessary in all of the following cases.
Pregnancy dismissals:
These are automatically unfair if the reason or principle for the dismissal
is that the employee is pregnant or there is any other reason connected with
pregnancy.
Disabled workers:
An employer must consider an employee’s personal circumstances, including
any disability, when deciding when to dismiss. This means that the standard by
which a disabled worker’s performance is measured must take into account his or
her disability. If, after making such allowances, the employee’s performance is
still below par, then dismissal may be fair.
Mental Illness:
The EAT has stated that ‘incapacity on the grounds of mental health is an
exceptionally delicate and sensitive field’. Therefore, while dismissals involving
mental health should be approached in a similar manner to other types of
illness, there must be even greater tolerance and support.
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Drink and Drugs:
The difficulty in this area, for the employer, is to determine whether to
deal with the issue as one of misconduct or ill health. If an employee’s
misconduct or deterioration in performance is due to chronic alcoholism or drug
addiction then a disciplinary procedure is inappropriate – sickness procedures
should be used and medical opinion sought.
