It is a common dilemma we hear from employers: what do I do about an employee who is off persistently? Can, or should, I discipline them or even dismiss them? The answer is a classic lawyer’s response: it depends. But here are some things to consider when you are in this position.
Reason for absence
The first thing to consider is why is the employee absent? If there are repeated absences, are these for related reasons? Always remember that there may be an underlying medical reason, of which you are not aware, which might link the absences and may be the underlying reason even although the primary reasons are not connected.
While there is not therefore a requirement to get medical evidence, it might be sensible in certain circumstances for example where you know that the employee has an underlying health condition, to make sure that there is no connection.
You also need to mindful of potential disability discrimination if the reason for absence is related to the employee’s disability. You might also have to make reasonable adjustments.
The top tip here is don’t be quick to judge based on limited information – you might make a wrong and costly assumption.
Make sure you have clear reporting procedures to advise of absences and their reasons. When the employee returns, have a return to work meeting. At that meeting, ask relevant questions about their absence:
- Why were they off?
- Do they feel ready to return to work?
- Was their absence because of work?
- Was it as a result of an underlying health condition?
- Is there anything you can do to support them?
You should also consider having permitted thresholds for absences which, if exceeded, further action could be taken.
If you also feel that the employee’s absences are becoming too frequent and causing a problem to the business, you could consider suspending contractual sick pay (where that exists) and where this is discretionary. Just be aware of any potential discrimination issues which could arise from this decision and make sure you can justify it. Remember also that if not discretionary and you withhold it, that is a breach of contract.
Before taking any disciplinary action, give the employee the chance to improve within a particular time, with a warning that, if they do not, there could be disciplinary consequences. Be sure to follow your disciplinary policy in relation to this.
The key is to make sure that the employee is under no illusion that their persistent absence is a problem with a clear warning that, if it is not remedied within a specific time period, then you will have to take further action.
A reason to dismiss?
Ultimately, persistent short-term absenteeism could result in dismissal. In International Sports Company Limited v Thomson a three part test was identified to show a fair dismissal:
- The employer should carry out a fair review of the attendance reasons for the absence;
- The employer should give the employee an opportunity to make representations and;
- The employer should give the employee appropriate warnings of dismissal, if there is no improvement.
Ultimately, you should find out why the employee has been absent. Give them a chance to explain that and, if the absences continue, then warn the employee that without improvement then dismissal (or another appropriate sanction according to your policy if not at that stage) will follow.
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