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Employer guidance for ‘National Sickie Day’

Senior Associate Solicitor, Jane Sinnamon

As many of you may be aware, today is ‘National Sickie Day’, so-called because the first Monday in February has traditionally been associated with employees calling in sick to work. Whilst some employees are guilty of pulling the occasional ‘sickie’, there are others whose absences present a challenge for their organisation and may result in an employer considering a capability dismissal. We’ve set out some guidance below on what employers should have in mind when considering this.

In both cases of short-term and long-term sickness absence, as well as showing that capability was the reason for dismissal, an employer will need to follow a fair procedure. The ACAS Code does not apply to genuine ill-health dismissals; however, an employer should have in place a Sickness Absence Policy which will set out an appropriate procedure to follow.

Long-term sickness absence

Capability dismissals may follow long-term sickness absence of an employee. Some factors which are likely to be relevant to whether a dismissal for long-term sickness absence is fair are:

  • Whether the employer has established the true medical position and consulted with the employee;
  • The nature of the employee’s illness;
  • The prospects of the employee returning to work and the likelihood of the recurrence of the illness;
  • The need for the employer to have someone doing the work;
  • The availability and cost of temporary cover;
  • The effect of the absence on the rest of the workforce;
  • The extent to which the employee was made aware of the position;
  • The availability of alternate employment;
  • The employee’s length of service; and
  • The size and resources of the employer.

It is vital in cases of long-term sickness absence to ascertain the medical position and an employer will need to obtain medical evidence from an appropriate medical professional as part of the investigation into the employee’s health. This will also require consultation with the employee in relation to both the medical evidence and their own views on their health and likely recovery. They may wish to obtain their own medical evidence if they are not in agreement with the report obtained by their employer.

An employer should also consider alternatives to dismissal such as adjustments to the employee’s current role, the availability of alternative employment and the application of any scheme such as ill health retirement or permanent health insurance. A failure to do so can render the dismissal unfair even where the employer has otherwise consulted extensively and followed a fair procedure.

Short-term sickness absence

Alternatively, an employer may wish to dismiss as a result of repeated short-term absences. In such cases the following factors are likely to be required for a dismissal to be fair:

  • A review of the pattern of absences and the reason for them;
  • Warning the employee of the required improvement in attendance and likely consequences (such as the risk of dismissal), giving them the chance to make representations;
  • Allowing time for the employee’s attendance to improve; and
  • Considering whether there has been the required improvement in attendance.

Cases of persistent, short-term and intermittent absence may be more difficult to deal with than long-term absence, as it is often hard to predict whether the employee’s attendance will improve. Where this is the case and there is no underlying health condition, a medical expert is unlikely to be able to predict with any more certainty than a manager when the employee is likely to show a sustained improvement in attendance. For this reason, it may not always be necessary to obtain medical evidence. However, an employer should exercise some caution as there may be some cases where short-term absences are apparently unconnected but in fact relate to an underlying health condition, which might require an employer to obtain medical evidence.

An employer should refer to its Sickness Absence Policy for the appropriate procedure to follow.  In general though a key procedural requirement is to make the employee aware of :-

  • The standards of performance expected of them.
  • The impact their absence is having on the employer’s business and their colleagues.
  • The likely consequences of formal action or dismissal in the event of their continued absence.

An employer will need to carefully consider at what point the level of absence reaches a point to justify dismissal.

Additional Considerations

In cases of dismissal for ill-health, care must be taken to avoid discrimination particularly if the reason for absence amounts to a disability under the Equality Act 2010, in which case the dismissal may amount to unlawful disability discrimination under that Act.

Careful thought should be given to the reason for dismissal. There may also be overlap with other fair grounds for dismissal, such as misconduct and ‘Some other Substantial Reason’. It is important to correctly define the reason for dismissal, particularly to ensure that the appropriate procedures are followed for the dismissal to be considered fair.

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