Employee absence falls into five categories:
- short term intermittent ill health where there is no underlying health condition
- short term intermittent ill health where there is a disability
- long term ill health where there is no underlying permanent health condition
- long term ill health where there is a disability
- ill health malingering
In the first four categories the employer should use ‘capability’ process rather than disciplinary.
Ill health malingering is rarely easy to prove, however, where there is good evidence to show the employee is fit for work (but saying they are not) this should be dealt with as a disciplinary (rather than capability) issue.
It is seldom possible to be certain which category applies in any given case and important not to jump to conclusions.
The Appropriateness of Warnings
A serious case of ill health malingering may constitute gross misconduct, however, in all but the clearest of cases it will be appropriate to follow a warnings process (under the disciplinary policy or ACAS Code on Disciplinary and Grievances).
Similarly where absences are short term and intermittent, warnings will often be appropriate. A warning should only be considered after the procedural safeguards detailed below have been followed.
In cases involving long term absence, it is seldom appropriate to issue warnings. This is because an employee who is genuinely unfit for work cannot be expected to become fit in response to a warning.
However, this does not mean that a decision to dismiss should come ‘out of the blue’: the employee should be given ample opportunity to understand that the process being followed may result in dismissal.
Contract of Employment
The employer should check the employee’s contract. Whilst there is no firm rule that an employee must be allowed to continue until he / she has exhausted a right to contractual sick pay, the existence of a right to sick pay is a strong indication of how much absence the employer should tolerate.
Sometimes the contract will ‘reserve’ a right to terminate employment if the employee is incapable of work for a certain period of time. This is relevant to how long the employer should hold the job open for. However, it is not the ‘be all and end all’ and cannot be safely relied upon to justify dismissal.
It goes without saying that the employer must have reference to its own policy documentation as this relates to ill health and absence management.
Often policies are drafted with the expectation that specific procedural steps will be undertaken, or that a particularly lenient or fair approach be taken.
If the policy applies a more generous standard than would otherwise apply, the employer will find it very hard to justify a departure from these more generous standards. The employer – after all – chose to adopt them and should be required to abide by its promises.
There is a ‘golden rule‘ to follow here: have regular reference to policy documentation and scrupulously follow any process that is laid out.
It is important to maintain good records of employee attendance and ensure absences are supported by either:
- A self certification form (up to 7 days absence)
- A G.P. ‘Fit Note’
Return to work meetings are very important; these give the employee an opportunity to explain any underlying reasons for absence and to explain if work related factors are causing or contributing to absence levels.
During periods of absence take reasonable steps to keep in touch with the employee (whilst being careful to avoid oppressive levels of contact that may hinder recovery).
These vary depending on the relevant policy documents, however, the following steps are usually appropriate:
- be sure to keep notes of all meetings and conversations about absence and ill health
- keep documents and details of ill health strictly confidential (data protection legislation requires the highest standards of security with record keeping)
- talk to the employee – either in person, or if they cannot attend a meeting by phone
- consider obtaining a letter or report from the employee’s G.P.
- consider making a referral to an Occupational Health Advisor
- prior to decisions about warnings or dismissal, invite the employee to a formal meeting so their views can be taken into account
- allow the employee to be accompanied at any formal meeting
- if the employee cannot attend a meeting, provide full details of the case for warning / dismissal (together with copies of all relevant documents) and invite him / her to provide written submissions
- where a formal meeting results in an adverse decision allow the employee to appeal
- insofar as reasonably feasible ensure the manager who decides on any warning, dismissal or appeal is impartial
- ensure all factors that are taken into account are recorded and the reasons for the decision are explained in an outcome letter
Only in exceptional cases (i.e. where there is no possibility of a disability and service is less than 2 years) can these procedural safeguards be overlooked.
An employee whose long term (or persistently intermittent) absence/s are due to a condition that is ‘long term‘ (i.e. has lasted or is likely to last 1 year or more) is very likely to be protected by the disability discrimination laws.
Absence of express knowledge of a disability is no defence (because the fact of ill health absence will almost inevitably mean the employer has ‘constructive knowledge’ (i.e. they would have known if they had made reasonable enquiries).
In such a case it is essential to seek out information about ‘reasonable adjustments‘ that can be made to reduce or avoid a detrimental effect that results from a work related requirement (e.g. the requirement of regular work attendance).
This should be done in two ways:
- ask the employee if there is anything that can be done to assist them (to facilitate a return to work, or avoid problems when they return)
- seek expert advice from the employee’s G.P. (less advisable) or Occupational Health (much better) about adjustments
Less favourable treatment ‘arising in consequence’ of a disability
A warning or dismissal because of something that results from a disability (e.g. non-attendance at work, intermittent absences, etc) will be unlawful unless it can be justified.
Justification in this sense means that the detrimental treatment (warning or dismissal) is a proportionate means of achieving a legitimate aim. So the employer’s objective has to be reasonable and there should be no reasonable alternative to detrimental treatment.
Note that it will always be sensible to seek the employee’s views:
- does he / she agree that the objective is reasonable in the circumstances?
- can he / she suggest an alternative that attains that objective without the detrimental treatment in question?
If you cannot think of an alternative, and neither can the employee, you are likely to be on safe ground.
The interaction between Reasonable Adjustments and Unlawful Discrimination
The second ‘golden rule’ to keep in mind is this: if a reasonable adjustment can be made which will avoid the need for detrimental treatment, and the employer unreasonably fails to do this, it will be impossible to rely on the justification defence.
In this context ‘reasonable’ depends on all the relevant surrounding circumstances, so keep an open mind and always be willing to argue ‘devil’s advocate’ against reasons to refuse an adjustment. Even if this leads nowhere, evidence of due consideration will be essential.
Bottom line: the duty of reasonable adjustment is primarily concerned with enabling the disabled person to remain in or return to work with the employer, or to enable a disabled person to play a full part in the world of work.
Subject to reasonable adjustments and justification in disability cases, the viability of dismissal will depend on these factors:
- has the employer waited a reasonable amount of time for the employee to recover? (as a general rule of thumb the longer serving an employee the longer the employer should be willing to wait)*
- is there any reason to expect that the employee will be fit for work in the near future?
- is it likely that the employee will be able to render regular service when / if they do return to work?
- does the employee continue to derive financial benefit from continued employment?
- is the employer’s need to have the work done urgent and critical?*
- is it reasonably feasible for the employer to continue with cover arrangements?
- can the employer redeploy the employee to a suitable alternative role and thereby avoid the need to dismiss?
- is the workplace a contributory factor to the employee’s ill health?*
* ‘yes’ answers to these questions support dismissal.
‘no’ answers to all others also support dismissal.