Can you sack an employee who's regularly off sick?
One of the biggest challenges facing employers is managing levels of sickness absence. The ultimate sanction is dismissal. But while sacking someone may be appropriate in some cases, it can lead to costly claims for unfair dismissal, discrimination, or both.
Unfair dismissal The Employment Rights Act 1996 says that a dismissal may be considered to be fair where the employer can show that the reason for dismissal falls within one of five potentially fair reasons, two of which impact on authorised ill health:
1. Capability - where it relates to the health or any other physical or mental quality of the employee and which affects their ability to carry out their duties; or
2. Some other substantial reason - for example, persistent absence due to ill-health, with no linked, single underlying reason, which is having an impact on business efficiency.
In the case of genuine short-term absences caused by a single underlying medical problem or long-term sickness, an employer may be able to argue that he had a fair reason for dismissal because the employee was unable to carry out his or her duties.
In the case of persistent, intermittent short spells of absence, an employer may successfully argue that he had "some other substantial reason" for dismissal because the cumulative effect of the absence was having an adverse effect upon the business and was not sustainable.
The Disability Discrimination Act The Disability Discrimination Act has brought an added dimension to dealing with employee absence, since if the nature of the ill health means that the person is considered to be disabled under the terms of the act, then the employer is under a statutory duty not to discriminate against that person, and to make "reasonable adjustments" in order to accommodate the disabled person.
A person will be considered to be disabled if they have a physical or mental impairment that has an adverse effect on their ability to carry out day-to-day activities, and the adverse effect is substantial and long-term.
Sickness absence policy
The company's sickness absence policy should be followed in full and as soon as an attendance problem becomes apparent. In order to have an objective and fair way of picking out the worst absence records, it may be helpful to adopt a common "trigger" for reviewing absence records. These mechanisms should be included in a company's policy.
Medical evidence Where the absences are related, employers should ask for permission to seek medical evidence from the employee's doctor, or ask the employee to see the company doctor, before proceeding to dismissal.
Even where the absences appear to be unconnected, seeking medical input is a recommended precaution to determine if there is an underlying medical condition that explains the absences.
For example, although a succession of minor ailments such as colds, ‘flu or sickness might not be linked, repeated complaints of back or muscle pain, nerve disorders or other ailments might indicate something more serious and possibly bring the employee within the protection of the Disability Discrimination Act.
In long-term sickness cases, obtaining medical evidence is vital. Employers should ask the doctor specific questions about the exact nature of the medical problem, a likely date of return, and what duties the employee will be able to carry out on their return. In addition, the doctor should be asked whether, in the doctor's opinion, the employee's condition may fall within the statutory definition of disability.
Employee consultation The ACAS Code of Practice on Disciplinary & Grievance Procedures advises employers to make sufficient enquiries into the reason for an employee's absence before taking any decision to sack them.
Personal interviews should be held to find out more information about the absence, which might include:
an undiagnosed medical condition;
poor working relationships or other work problems (eg, stress);
domestic problems;
personal problems.
This can give the employer the chance to address these problems and to make adjustments to encourage the employee back to work.
But it is still important that the employer tells the employee:
that the level of absenteeism is unacceptable;
that their absence record must improve;
how it needs to improve and by when;
what will happen if their attendance doesn't improve.
An employer will not normally act reasonably in dismissing an employee on the grounds of repeated absence unless he gives them fair warning and an opportunity for their attendance to improve.
Suitable alternative employment
In ill-health cases, the courts have stressed the importance of the employer looking for alternative employment within the company for an employee who is unable to return to their original job.
Where the employee is disabled, a failure on the part of the employer to make adjustments is likely to amount to unlawful discrimination. But employers are not expected to create a vacancy where one does not exist.
Considering alternative employment does not mean looking for the same or similar job, particularly if the employee's changed circumstances make it impossible for them to continue as before. Where the condition is temporary, minor modifications to the original job to help the employee return to work are all that is required.
A medical opinion will be vital. An occupational health advisor can advise management on any duties which are unsuitable, eg climbing ladders, working the night shift, driving.
Where alternative work is available or adjustments to existing work can be made, this should be fully discussed with the employee even if it involves different hours or pay. Cases have been lost where employers falsely made the assumption that employees would not consider an alternative job or adjusted working arrangements on different terms so never even bothered to discuss the situation.
by Kate Hodgkiss
Kate Hodgkiss is a solicitor at law firm DLA
