Dealing with employee absences due to ill health is complex and a legal minefield for employers. There are two distinct issues to consider:
- the employee who takes short term absences on a regular basis.
- the employee who has been off work for a long period of time due to ill health or disability
Short term and/or repeated absences from work
We are regularly asked whether persistent short term absences can legitimately result in dismissal. The answer is yes, but due procedure is vital including :-
- checking employment contracts, policies & procedures and complying with them
- with repeated absence seek the employee’s co-operation for access to his or her medical records or to liaise with his or her GP and possibly also consider seeking employee’s co-operation for Occupational Health assessment by a Consultant retained by you
- comply with proper procedure and provide appropriate warnings. Dismissal should be the last resort and not first option.
- acting consistently as regards all employees
- taking into account the nature, length and effect of the absences
- the employee’s past performance
- whether the decision to dismiss be justified as being fair and reasonable in all the circumstances ?
- does the employee qualify to claim unfair dismissal in terms of length of continuous service ?
The position may be somewhat different where the employer has reasonable grounds to suspect that absences are being claimed due to sickness but in reality the employee is not ill. In such a situation, the position may escalate faster and depending on the circumstances, an employer may consider such activity to be gross misconduct.
Long term absence
Even greater care is required with long term sickness. The same considerations as detailed above for short term absence should be implemented and in addition :-
- keep in touch with but don’t harass the employee.
- if the employee’s condition improves consider if they can return to work.
- if they can return, consider offering them suitable alternative employment.
- ask for information from the employee’s doctor (although be very careful that this is done through the employee who may or may not co-operate) and take into account what the medical practitioner says.
- might the employee have a disability as defined by law which needs to be considered in terms of Equality legislation and reasonable adjustments ?
- devise a contingency plan
Matt Gingell is a partner at Gannons. Matt specialises in employment law and advises executives and companies on a wide range of employment issues. Matt also regularly writes articles for external publications.