A member of your reception staff has a persistently high level of short-term sickness absence. You are convinced his absences are not genuine. What action should you take?
Jumping to the conclusion that the absences are not genuine could lead you to inadvertently breach the Disability Discrimination Act 1995 (the DDA) if it subsequently transpires that the employee has a disability.
Similarly, accusing an employee of malingering without justification or adopting an inconsistent approach may lead you to breach the term of mutual trust and confidence which is implied into all employment contracts (whether written or not). You could then face an unfair dismissal claim.
Ask the employee to obtain a medical report from his GP or ask him to see a company-appointed doctor.
Absences that appear at first glance to be unwarranted may be a symptom of a more complex issue; for example, the absences might be due to work-related stress. If this is the case, or the absences are for other medical reasons, you should consider what actions you can take to assist the employee in improving his attendance record, such as whether any "reasonable adjustments" as required under the DDA may be made.
If no adjustments can be made to help improve the employee's attendance record bearing in mind the need for a reliable receptionist, the issue becomes one of the "capability" of the employee to perform his duties.
The ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS code) makes it clear that when dealing with capability issues, employers should take into account matters such as the likelihood of an improvement in health, availability of suitable alternative work, the effect of the absences on the business, how absences have been handled in the past and whether the absences are due to a disability under the DDA.
Eventually, it might be reasonable for the employer to consider dismissing the employee, although it is recommended that employers take specific legal advice first.
If, after investigation, there are no apparent medical reasons for the continued absences then the issue becomes one of "conduct" and the employer can hold a disciplinary hearing. Any disciplinary procedure should follow the ACAS code and employees have a right to be accompanied by either a colleague or trade union representative and should be given the opportunity to appeal against any disciplinary decision.
The DDA makes it unlawful for an employer with more than 15 employees to treat a disabled person less favourably for a reason relating to their disability without a justifiable reason.
Employers must make reasonable adjustments to conditions that might help to accommodate a particular disabled person. The definition of "disability" is wide, and can include not only physical but also mental conditions likely to last for at least a year.
An implied term in every employment contract is the one of mutual trust and confidence. If an employer accuses an employee of malingering without justification or where an employer adopts an inconsistent approach, it may breach this term.
The ACAS code contains useful guidance on dealing with absences, and while it does not have legislative force, it can be taken into account by employment tribunals when deciding whether or not an employee has been treated fairly.
In failing to manage absence correctly an employer may find itself facing either an unfair dismissal or a disability discrimination claim at an employment tribunal. This may prove costly because there is currently no cap on the amount of compensation that a tribunal can award in discrimination cases.
- Have a clear absence policy that covers rules on the provision of medical certificates and sickness notification procedures.
- Make it clear that if alleged sickness absences are not genuine, disciplinary action may be taken.
- Consider including an express clause in all employment contracts stating that employees are obliged to see a company-appointed doctor if requested to do so. Without such a clause employees can refuse the company's request to see the company doctor.
- Consider having return-to-work interviews, asking employees to explain why they were away.
- Always conduct a medical investigation before any disciplinary action is taken.
- Any disciplinary procedure should follow the ACAS code.
- Adopt a consistent approach to sickness absence to ensure that all staff are treated equally and fairly.
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