Employers should not be embarrassed to ask questions about sickness

UK employers may fall foul of the Disability Discrimination Act (DDA) because they are too embarrassed to investigate an employee’s illness or disability, legal experts have warned.

Many organisations would dismiss an employee who was constantly absent from work with self-certificated reasons, but they should not be afraid to ask questions, said Meriel Schindler, head of employment law at Withers

“Employers are often too shy to ask the employee in question, but coyness can be very costly,” she said.

“Turning a blind eye to an employee’s difficulties at or absences from work out of a misplaced sense of prudery will never be the right reaction. The employer may well have to face a claim for unfair dismissal and/or disability discrimination.”

While the compensation for unfair dismissal is capped by statute, the compensation for disability discrimination is uncapped, Schindler said. Such claims also attract adverse publicity and may well have a detrimental effect on staff morale, she added.

Withers four-step guide to dealing with long-term/intermittent sickness absence:

Ascertain the root cause of the problem

The appropriate response is to get to the root of the problem by asking the employee and their doctor what is wrong with the employee.

Any well-drafted employment contract should contain provisions that allow the employer to send the employee to an independent doctor who in turn has access to the employee’s existing medical records. That doctor should then examine the employee and prepare a full report on the employee’s condition, current treatment and prognosis.

If an employee is suffering from a disability (which is defined very widely as a ‘mental or physical impairment which has a long term adverse effect on his/her ability to carry out normal day to day activities’), then the employer immediately acquires three additional duties: a duty not to discriminate against the disabled person; a duty not to victimise them; and, crucially, a duty to make reasonable adjustments for the benefit of the disabled person.

If following a full medical advice and a detailed exploration of what might be feasible, it appears that no reasonable adjustment is possible, then the employer may have no option but to dismiss. In those circumstances, the employer should not only act with compassion, but also follow the recently introduced statutory disciplinary rules.