How to dismiss employees who pull “sickies”November 16, 2016 10:15am All News Stories Employment Law News
Unfortunately, employees all get sick at some point in their working lives.
However, some seem to be sick more often than others.
When faced with a high number of short-term absences, you will need to take action to reduce the frequency of these events. If you reach the conclusion that the only option left is to dismiss the employee, you must ensure that you follow a fair procedure in order to avoid disability discrimination and unfair dismissal claims.
In this article, we outline seven steps you need to take in cases of frequent short-term absences.
1 Review your sickness policy
In your sickness absence policy, you should set benchmarks, known as trigger points, for unacceptable levels of short and frequent sickness absence. The policy should also establish what actions need to be taken once those triggers have been met.
2 Monitor absences
Monitoring and recording each absence and the reason for it can prove helpful to identify any trends or patterns.
You may notice that an employee’s absences coincide with specific events or that certain individuals have a particular fondness for being sick on Fridays and Mondays.
Equally, you may spot that employees who carry out particular tasks are often absent for similar reasons, for example back pain. Or alternatively, you may identify that many of the employees who are taking frequent short-term absences have challenging deadlines and intense workloads.
Spotting trends will mean you can take action to rectify the problem.
3 Conduct return to work interviews
Holding a return to work interview on every occasion that an employee returns from absence from work is an effective way to probe into the reasons for absences. In the interview, you can explore whether the absence was due to illness and if it was due to illness, whether they are fully recovered or it is part of an ongoing condition. It can highlight areas where you can make any adjustments to help them improve their attendance.
You should see if there are any signs of underlying medical conditions, or that they are suffering from a work-related illness or that they have a long-term health issue which could be considered a disability.
Depending on what is discussed in the return to work interview, you may find some simple solutions to reduce persistent short-term absences. For example, you may discuss whether the employee can make some changes to their lifestyle to cut down recurrent and minor absences or whether their absences could be diminished if they have flexible working arrangements.
4 Decide if you need to take formal action
You may need to take formal action in the following cases:
- If the employee has reached those trigger points set out in your policy
- If you discover that there are no legitimate reasons for the absences
5 Invite the employee to a meeting
Once you have decided that formal action is required, you should invite them to a meeting with their line manager to discuss their attendance. The employee has the right to be accompanied by a colleague or trade union representative.
The meeting provides the employee with a chance to explain their absences. At their meeting, the employer should review the sickness policy, the employee’s attendance records and, if appropriate, any medical evidence, which can be obtained from either the employee’s doctor or an occupational health adviser.
Dependent on this medical evidence and what the meeting has revealed, the manager may decide to issue a warning. They must clearly explain to the employee what level of attendance is expected and give them clear targets of improvement and timescales to achieve these targets.
The manager should also ensure that the employee understands what the consequences are for failing to improve their attendance levels.
Remember, if there are any reasons to believe that the reason behind the absence is an underlying health condition, the matter should be dealt with by the long-term absence procedure.
6 Review attendance
It is important to review the employee’s attendance to see if there has been improvement. The date of the next review will depend on the circumstances of the individual case, but may be anywhere from one to 12 months.
If the employee’s attendance does not improve as required, a second meeting may be called. As with the first meeting, this should be carried out by a line manager and the employee has the right to be accompanied.
The line manager may decide to either extend the review period or they may decide to issue a final warning requiring the employee to improve their attendance and setting clear targets over a specified period.
7 Dismiss the employee
You may have reached the point where you consider that dismissal is the only avenue left. However, you need to take into account what Employment Tribunals will look at when determining whether a dismissal was fair.
Employment Tribunals will look into the reason for the dismissal.
It may be potentially fair to dismiss an employee on the basis of their conduct, if they tell you they are being sick when they are actually fine.
Likewise, it may be fair to dismiss the employee on the ground of capability, if their persistent absences negatively affect their ability to fulfil their work obligations.
It may also be fair to dismiss for some other substantial reason, if their absence is having a harmful impact on the business.
Acting reasonably in the circumstances
An Employment Tribunal will also look to see whether you have considered all the circumstances of the individual case. This is not an exhaustive list, but they will take into account the following to see if the employer acted reasonably:
- the nature of the illness if applicable
- the likelihood of the employee’s attendance record improving in the future
- the duration and frequency of the absences
- the periods of attendance between the absences
- the impact these absences are having on the rest of the team.
They will also be looking for the employer to have followed a fair procedure as outlined above. In particular that the employee was given appropriate warning of dismissal and giving them the opportunity to improve their attendance.
If the employee decides to dismiss, they should invite the employee to a final meeting. This must be carried out by a manager with appropriate authority to dismiss. The employee is entitled to be accompanied and allowed to make representations.
Any dismissal that comes out of this meeting will be with notice.
Other important points to consider
Be warned that applying your standard sickness management triggers to disability-related absences could land you in trouble. You must think about what reasonable adjustments could be made in the workplace to help the employee improve their attendance.
Be aware that a different approach may be required if the absences are due to mental health/stress issues or pregnancy.
We would always recommend you seek legal advice before taking action to mitigate any risks of claims.
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