Weekly dilemma: sickness absence and dismissal

Q An employee at our marketing firm recently slipped and fell at work. She carried on working for the rest of the day and didn’t appear to be in pain, but was then off work sick for two weeks, claiming she had broken her foot. She came back to work, but then took another two weeks of sick leave. I don’t want to get sued for unfair dismissal, but can I fairly dismiss her with all these absences?

A Any dismissal based on those absences alone has a good chance of resulting in a claim for unfair dismissal, assuming that the employee has the requisite 12 months’ service to bring such a claim in the employment tribunal.

You should first consider whether the employee complied with your sickness absence reporting procedures. As she was absent for more than seven days, you should have received a fit note from her confirming the reason for her absence. If she is in breach of your sickness absence reporting procedures, it may be possible to start disciplinary action against her on that basis. But it is highly unlikely that a dismissal based solely on procedural failings would be a proportionate response.

However, if the employee has a history of persistent short-term absences, you may be able to deal with her sickness absence, as part of this wider issue, as a disciplinary matter. If so, ensure you comply with Acas’s code of practice, and act reasonably throughout. Although it is unlikely to be the case with a broken foot, as with all employment issues involving employee sickness, you should be aware of the possibility of an underlying medical condition that could amount to a disability, and if this seems to be the case here, obtain advice from an employment specialist before taking any disciplinary action.

Given that the employee’s accident occurred at work, be aware that she may have a personal injury claim against the company. Ensure that details of the accident have been recorded in the accident book and that steps have been taken from a health and safety perspective to reduce the chances of a similar accident happening again.

More generally, to help deal with manage sickness absence, you should consider holding return-to-work interviews with all employees who return from a period of sickness absence to ascertain the reason behind the absence, determine whether any further absence may result and how you can assist, and also to alert the company to any potential disabilities.

Claire Reddington, solicitor, Davis Blank Furniss

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