Persistent short-term absenteeism
If one of your employees is taking a high number of occasional sick days, and you suspect they're being dishonest about it, what should you do? Employment law expert Matthew Tom explains how to deal with the problem.
THE PROBLEM
Your employees are taking an unacceptable number of occasional sick days, claiming minor ailments. But what should you do? It's tempting to react decisively, particularly when business is suffering as a result. However, any action must be made with caution as there may be genuine underlying causes for the sick days.
THE LAW
Every employment contract requires parties to conduct themselves in ways that do not destroy or undermine mutual trust and confidence.
If the employer is considering dismissal or disciplinary action on the grounds of the employee's sickness record they must establish a "potentially fair reason" for dismissal (this reason must relate to either the employee's "capability" or "conduct") and act reasonably in deciding to dismiss. Failure to do either could result in an unfair or constructive dismissal claim.
Disability discrimination also needs to be considered. This arises where employees are disciplined or dismissed for absenteeism related to a disability (ie, a mental or physical impairment with a substantial and long-term effect). Failure on an employer's part to implement all reasonable adjustments concerning the disability could lead to unfair or constructive dismissal claims.
EXPERT ADVICE
Employers are often suspicious of patterns of absences on Mondays and Fridays. However, whilst such patterns could indicate dishonesty or lifestyle issues, employers should not jump to conclusions, as there may other reasons, including stress, bullying, personal problems or depression.
A highly effective starting point is to hold "return to work" interviews straight after each absence, to discuss and explore any underlying issues. These are informal and not disciplinary in nature, but can be invaluable both as a subtle deterrent to employees in the habit of taking dishonest "sickies" and for identifying genuine underlying problems.
If disciplinary action based on capability is contemplated, the essential first step is to fully investigate reasons for absence, through consultation with employees and their doctors and also an independent doctor or occupational health professional.
Dismissals based on only the employer's view will usually be unfair, as most employers are not medically qualified and it is usually unreasonable (and thus unfair) to take action without sufficient medical evidence. Recommendations from medical professionals should be sought before starting any disciplinary action.
Adopting a constructive and supportive approach through consultation is essential to a fair "capability" procedure and can also uncover any underlying disabilities requiring special consideration and the making of all reasonable adjustments to alleviate their effects.
While the issue of reasonable adjustments is beyond the scope of this article, it is generally only after all such adjustments have been considered and (if reasonable) implemented that disciplinary action based upon "capability" should commence.
CHECK LIST
- Monitor absences closely and hold interviews afterwards
- Investigate matters raised in interviews, eg, concerns about bullying or stress
- Consult fully with employees and their GPs about any medical issues
- If needed, appoint an independent doctor or occupational health professional
- Consult fully, openly and in good faith with employees about issues and possible solutions
- Implement all reasonable adjustments for any disabilities before further action
- Follow the Acas Code of Practice if disciplinary action is needed
- Issue at least two disciplinary warnings before considering dismissal on "capability" grounds
BEWARE
An unfair dismissal claim can cost up to £65,300 in compensation, as well as significant legal fees and costly wasted management time. Disability discrimination claims have no limit on compensation and also incorporate compensation for "injury to feelings" of up to £30,000.
CONTACT
Matthew Tom is head of employment at Candey LLP
