Employers can find persistent short-time absenteeism difficult to deal with. While sympathetic, there will come a time when a reasonable employer is entitled to say “Enough is enough”. Determining when that is not easy.
There are a variety of reasons for persistent short-term absences – a series of minor, unconnected ailments such as colds and stomach upsets; re-occurring conditions such as back problems or asthma; and family, personal or child care problems. In addition to absence for genuine reasons, there is also the possibility of employees “skiving”.
Where ill health is the reason for absence, employers must bear in mind the provisions of the Disability Discrimination Act because an employee’s illness may fall within the definition of a disability under the Act.
The following provides a useful guidance to employers on how to deal with persistent short-term absenteeism:-
- Absences should be investigated promptly and the employee asked to give an explanation at a return-to-work interview.
- If there are no acceptable reasons then the matter should be treated as a conduct issue and dealt with under the disciplinary procedure.
- Where there is no medical certificate to support frequent self-certified absences, the employee should be asked to consult a doctor to establish whether medical treatment is necessary and whether the underlying reason for absence is work-related. If no medical support is forthcoming the employer should consider whether to take action under the disciplinary procedure.
- If the absence could be disability-related the employer should consider what reasonable adjustments could be made in the workplace to help alleviate the effect of the disability.
- In all cases the employee should be told what improvement in attendance is expected and warned of the likely consequences if no improvement occurs.
- If there is no improvement, the employee’s age, length of service and performance, the likelihood of a change in his or her attendance level, the availability of suitable alternative work and the effect of past and future absences on the business should all be taken into account in deciding appropriate action.
- Persistent absence should be dealt with promptly, firmly and consistently in order to show both the worker concerned and other workers that absence is regarded as a serious matter and may result in dismissal.
If dismissal is contemplated, employers must be clear about the grounds on which an employee is to be dismissed. If the employee has been employed for at least 12 months, a claim for unfair dismissal is a possibility. To avoid such a claim, the employer must be able to show that the reason for the dismissal is one of the potentially fair reasons; namely capability, conduct, redundancy, contravention of a statutory enactment, or “some other substantial reason”. Further, even when a fair reason is established the employer must have acted reasonably in dismissing the employee for that reason.
Dismissal as a result of absences caused by genuine sickness or disability has generally been treated as falling under “capability”. Where there are unauthorised absences the reason for dismissal is generally “conduct”. Failure to identify correctly the reason for the dismissal will create considerable problems and may result in a finding of unfair dismissal.
What is required where there is an unacceptable level of intermittent absences is:-
- A fair review by the employer of the attendance record and reasons for absence;
- An opportunity for the employee to make representations; and
- Appropriate warnings of dismissal if things do not improve.
It should also be remembered that the relevant statutory disciplinary procedure must be followed. If there is no adequate improvement in the attendance record, dismissal will be fair.
No minimum period of employment is required before an employee is entitled to bring a claim for disability discrimination. However, such a claim will fail if the employer can show that the dismissal was justified, taking all the relevant circumstances into account including the duty to make reasonable adjustments.