One of your employees has had numerous days off sick. You have investigated the alleged causes and subsequently taken disciplinary action against her. You have also warned her that further absence may place her employment at risk. On a busy Saturday she calls in and says she will not be at work for two days as her elderly aunt is ill. What should you do?
All employees have the right to take reasonable time off without pay in order to deal with a sudden problem relating to a "dependant".
This applies where a dependant falls ill, gives birth or is injured or assaulted, as well as where time off is needed to deal with immediate funeral arrangements or where care arrangements have unexpectedly failed.
"Dependant" means not only the employee's spouse, child or parent, but also includes someone living in the same household as the employee, or any person who reasonably relies on the employee for assistance.
Employees must tell their employer, as soon as practicable, the reason for their absence and how long they expect to be off work. The right to time off is available to all employees (but not to contractors) whether they work full-time or part-time.
It is unlawful to dismiss an employee or subject him or her to any detriment by reason of asserting this statutory right. Any such dismissal would be automatically unfair and the normal £52,600 cap on the compensatory award for unfair dismissal would not apply.
The overall issue of sickness absence is most effectively dealt with by taking reasonable steps to investigate the causes and by using disciplinary proceedings where the absences are found to be unjustified. However, it would be unwise simply to use this latest absence to justify a dismissal, as the employee may have a statutory right to take the time off.
The employee's aunt would not normally fall within the definition of a "dependant", unless she generally relies on the employee for assistance. If the aunt does qualify as a dependant, the employee will be entitled to take reasonable time off in order to attend to her aunt's immediate care needs. Unless the employee's contract provides otherwise, you can refuse to pay her for the time that she is away.
The employee in this case has complied with the requirements of informing her employer and giving an idea of how long she expects to be off work, but she is entitled to only enough time off to make alternative care arrangements, not to undertake the care duties herself. Given the employee's previous unacceptable levels of absence, potentially she could be dismissed at some time in the future, having been put through either a disciplinary procedure (if she is thought to be malingering) or a process of consultation concerning her apparent incapability of performing the role (if the absences are believed to be genuine).
Incapability is a potentially fair reason for dismissal if the employee is unable to fulfil the terms and conditions of her employment contract by being unavailable for work. To achieve a fair dismissal, it would be necessary to demonstrate that a fair procedure has been followed. This will normally involve getting a medical report and consulting fully with the employee about the issue and any possible solutions before action is taken. To demonstrate reasonableness, it may be useful to show that a supportive attitude has been adopted.
Allow the employee to take reasonable time off to attend to the immediate care needs of her dependant.
Consider stopping her wages while she is absent.
Do not terminate her contract based on this absence.
Do not subject her to any detriment based on her taking this time off.
Be supportive, but ensure that the employee does not exceed her right to "reasonable" time off.
Do not link this absence with her generally unacceptable level of absence.
Continue to monitor her level of sickness and, if it does not improve, consider following a capability procedure or disciplinary procedure.
Tarlo Lyons Web site: www.tarlolyons.com
Tel: 020 7405 2000
Web site: www.dti.gov.uk/er/individual/dependants.pdf
ACAS Web site: www.acas.org.uk
Dismissing the employee as a result of this absence could easily lead to a successful claim for automatic unfair dismissal, on the basis of her having asserted a statutory right.
An employment tribunal could award whatever compensation it considered just and equitable in the circumstances, without applying the normal £52,600 cap on the compensatory award.
If the employee were subjected to a detriment as a result of this absence, this would provide good grounds for her to resign and claim constructive dismissal. Such a dismissal would almost certainly be deemed unfair.