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SICKNESS ABSENCE
Where an employee’s level of sickness absence may eventually
require the employer to consider the possibility of dismissal, if that dismissal
is
to be judged as fair the employer must be able to show that:
- the employer
was adequately informed about the employee's illness; and
- the decision to
dismiss the employee was reasonable in light of that information.
Consultation and Discussion - With the Employee
Consultation and discussion should first be undertaken directly with the employee.
The employer should seek to find out from the employee the true nature of the
illness(es). Such consultation should not at this stage be deemed or referred
to as a disciplinary procedure or a “warning” about the employee’s
levels of absence. Such phrases are linked to misconduct, and are not appropriate
where it is actually an employee’s capability to carry out his or her
job due to ill health absence, which is actually in issue. The emphasis at
this stage must be, at least ostensibly, on “sympathy, understanding
and compassion”.
There is no set procedure for such consultation, the emphasis being on the
employer taking such steps as are necessary according to the individual circumstances
of the case to gather information upon the true medical position. Full records
of the absenteeism should be kept and these should be drawn to the employee's
attention.
Consultation and Discussion - After Medical Advice
Following on from consultation with the employee the employer should consult
a doctor about the nature of the employee's illness. This may be with the employee’s
own doctor and/or with an independent doctor appointed by the employer. The
employee's consent to such an examination will be required and the employer
cannot insist on the examination. However, if the employee refuses to agree
to a request to be medically examined the employer will have to act on the
basis of the facts which are available. In such cases an Employment Tribunal
would take account of the refusal and the dismissal may be fair even if, had
medical opinion been available, it would have been unfair.
The employer has a duty to consider what reasonable measures may be introduced
to alleviate such working conditions which may be contributing to or exacerbating
the illness (e.g. stress). Such considerations should include the possibility
of offering the employee alternative employment should such a position be available.
If there is no underlying illness and no real problem with work, and the absenteeism
is at a level to justify it, a warning must inevitably be considered as the
next step.
Dismissal
Once information on the medical condition has been gathered
by consultation with the employee and a doctor it may become necessary for
the employer to
consider dismissal if the employee's attendance record has failed to improve.
The factors to be weighed up on considering whether such a dismissal is fair
or reasonable will include:
- the duration of the illness (whether temporary
or permanent)
- the likelihood of recurrence on a regular basis (the disruptive
effect)
- the length of the various absences and the space of good health between
them
- the employer’s need for the work done (finding replacements)
- the
length of the employee's employment (including any previous good record)
- the impact of the absences on others who work with the employee (overtime)
- the extent to which the difficulty of the situation and the position of
the employer has been made clear so that the employee realises that
the point of
no return is approaching
Records
Consideration of the factors (and the gathering of evidence in respect of
the same) referred to above should start from the outset and full records should
be kept. Clearly, of fundamental importance are the terms of the employee's
contract which may provide for termination after certain levels of absenteeism.
Also details of the number of days taken off through illness and their regularity
should have been made clear to the employee.
The Disability Discrimination Act 1995
When carrying out the above procedure in cases of sickness absence an employer
should consider whether the illness constitutes a disability within the meaning
of the Disability Discrimination Act 1995. This Act has implemented significant
new rights for disabled people to prevent discrimination. See separate section
on Discrimination.
Discrimination occurs when a disabled person is treated less favourably than
other people for a reason related to his or her disability, and this treatment
cannot be justified. Discrimination also occurs if an employer fails to make
reasonable adjustments to ensure that employment arrangements or premises do
not put a disabled person at a disadvantage in comparison to a non-disabled
person and the failure cannot be justified.
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