PERSISTENT short-term absence from work is a difficult management issue for most smaller employers. If you offer a generous employer’s sick pay scheme there is a fair chance that there will be little financial motivation for staff to return to work speedily or, indeed, to think twice about taking a sick day or two.
The disruptive effect of the same colleague being off sick on a regular basis can create some strong feelings amongst their colleagues – who often end up covering for their absent colleague by working harder or for longer hours. This potential ill-feeling towards the absentee can also be directed at a line manager who is perceived by the rest of the staff as “letting them away with it”. The resentment may exist even if the manager is discussing the absence regularly with the absentee – because these discussions are, by definition, confidential and therefore cannot be shared with the rest of the team.
There is a popular myth amongst employees that “They can’t sack me for being off sick, if it’s genuine or at least certificated”. But this is a misconception if based on a belief that the law protects employees from dismissal for short-term sickness absence. Sickness, whether a single long-term absence or a series of persistent short-term absences, can lawfully form the basis of an employer’s reason for dismissal. The law refers to the “capability… of the employee for performing work of the kind which (he or she) was employed” being a potentially fair reason for dismissal (Employment Rights Act 1996).
However, in order to avoid or defend a claim of unfair dismissal, the employer will have to show that the employee was aware that, if their persistent absenteeism continued, their job was at risk. Normally this will be achieved through the use of formal warnings to the employee, delivered after a formal disciplinary interview process.
Clearly, it would be preferable to avoid getting to the formal warning stage with an employee who seems to be building up a higher than average pattern of absences. For example, this might be achieved by a review process which is triggered when an individual reaches a certain level of absences in a defined period (e.g. so many instances of absence or so many accumulated days off in a rolling 12-month period). This review should ideally be conducted by their line manager and be separate from any return-to-work (RTW) interview relating to a specific absence.
The review should provide an opportunity to discuss the reasons for the absences, any common denominators that are obvious (dates, health reasons given, days of the week, etc.) and any underlying health or disability issues that are known to the employee. It may even be helpful to make a referral to an occupational health adviser – in order to identify underlying conditions or lifestyle issues which might usefully be discussed with the employee.
It is of course quite possible that, if the absences have been for a short duration and have therefore not required the employee to obtain a fit note, the employee may not have sought the advice of their GP about these problems. A GP’s report might therefore be unproductive for absence management purposes as the GP will probably not have clapped eyes on their patient for some time and will not be able to usefully comment on their general health.
A problem issue which Law At Work clients have identified with this approach is that of consistency of treatment of their employees by different managers. Clearly it will be problematic for an employer if an employee can show that had they worked in a different location or team or department, their manager there would not have issued a warning to them about absence (or, even worse, would not have dismissed them). The way to avoid this problem is to ensure that the practice manager is involved in all such review interviews.
Finally, one consideration when warning staff about persistent absence is the presence of an underlying disability. It may be reasonable, for example, to remove from cumulative monitoring any absences which can be attributed to a disability. This presupposes, of course, that the staff member has told the practice about the disability and that it is possible to say that a particular instance of absence was attributable to that disability.
The hope is that, through a combination of return-to-work interviews, review interviews, medical assessments and, if absolutely necessary, formal warnings about the risk to the staff member’s employment, the problem will be brought within ‘normal’ limits. However, if the employee fails to respond to this approach, a dismissal with notice can be fairly carried out through a formal interview process.
Ian Watson is training services manager at Law At Work