These articles gives a general overview only and the legal position at the time of writing them. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print.
Sickness Absence and the Law
Most businesses are caused considerable difficulty by sickness absences. This is especially true of smaller companies both because they are usually without a specialist human resources manager and because the impact of one employee being absent is proportionately greater in a smaller organisation.
The law relating to sickness absence is complex and applies equally to small and larger employers. The starting point is that a distinction is made between long-term sickness absence and frequent short-term absences. In relation to long-term sickness absence, the employer who dismisses an employee faces three potential legal risks. These are the risks of a claim for unfair dismissal (where the employee has been employed for more than one year), a claim for disability discrimination and a claim for breach of contract. In order to minimise the risk of these kinds of claims, an employer needs to follow 4 important procedural requirements: -
a) The employee must be given a reasonable opportunity to recover and return to work before they are dismissed. The law does not give definite time frames and the case law suggests that every case should be looked at on its merits. If the employee is entitled to contractual sick pay then the employee should not generally be dismissed during this period of entitlement. Indeed, if the employee benefits from a long-term health insurance scheme where entitlement depends upon continued employment, the courts have generally held that any dismissal for a reason related to sickness absence may amount to a breach of contract entitling the employee to substantial damages.
b) The employer must obtain medical reports. The employee's medical practitioner should be approached for a report and the employee will need to give their authorisation for this. The employer might also ask that the employee be examined by their own medical practitioner.
c) The employee must be consulted. This means that there must be a process of discussion with the employee about the alternatives to dismissal and generally about issues arising out of their illness. There might be a number of consultation meetings but it is essential that there is at least one consultation meeting immediately before the decision to dismiss the employee.
d) The employer must consider the possibility of making adjustments to the working environment in order to permit the employee to return to work. This is particularly so where the employee has a disability within the meaning of the 1995 Disability Discrimination Act but, in all circumstances, the employer should consider any proposals made by the employee about steps that could be taken to enable them to return to work.
The law deals very differently with the issue of frequent short-term absences which might be for a variety of different causes. In general, employers are entitled to adopt a reasonable absenteeism policy which sets out certain standards. For example, a policy might provide that a first written warning is given after four separate absences in any 12 month period; a final written warning is given if there are two further absences in the following months; and the employee might then face dismissal if they are absent on two further occasions in the next 6 months.
The above kind of absenteeism policy can be reasonable grounds for dismissal even assuming that all of the absences are for entirely genuine but unrelated reasons. However, it is essential that the employer holds meetings with the employee before issuing warnings and gives the employee the opportunity to appeal against any warnings and to appeal against dismissal. It is also essential that the employer seeks to identify any underlying cause for absences and, if there is a single underlying cause, then carries out some kind of process of medical investigation and consultation on this point.
In practice, many employers do adopt fairly rigorous absenteeism polices and dismissals for this reason are generally failed to be fair and non-discriminatory provided that a proper procedure has been followed.
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 0800 135 7917 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.
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<p><strong><a href="http://www.lemon-co.co.uk/article_sickness-absence.php">Sickness Absence and the Law </a></strong><br /> Most businesses are caused considerable difficulty by absences. This is especially true of smaller companies which tend not to have human resources staff...</p>