The cost of sickness
According to the UK’s largest annual survey the average worker is absent from work for 6.5 days a year. This figure varies from one workplace to another but the cost to the UK economy is £16 billion annually. It’s not surprising that some businesses struggle to know where to start managing this issue.
As employers there is no getting away from the fact that unfortunately, difficult decisions sometimes need to be taken for the good of team. And we know from personal experience that one of the conversations that employers fear is how to deal with persistent or long term absence, or, if there is a suspicion that the illness isn’t genuine.
If your organisation has robust and well thought out sickness absence monitoring procedures, and also lots of great policies to support a fit and healthy workforce, but there are still individuals with excessive levels of sickness what can you do?
When its really time to say goodbye
You need to handle it very carefully if you are going to instigate disciplinary proceedings or ultimately dismiss someone for a health related issue. Even though an employee needs to have two years service to qualify for a claim of constructive dismissal, this doesn’t apply if the employee has a disability (or another protected characteristic). It might be really difficult to know for sure if the employee has a disability, particularly if mental health is involved, as there are issues surrounding disclosure.
You must ensure that the process is fair and applied consistently. Tribunals will look to see that you have followed your own process as well as the ACAS code of conduct. Ensure you have a clear policy like Air’s free disciplinary policy in place.
However, at the end of the day, if someone can’t work due to a long term or persistent illness, you can dismiss them, even if they have received a diagnosis of a very severe or life threatening illness.
Dismissal on capability grounds
A dismissal would be based on capability grounds, i.e the employee is physically not present or unable to undertake the agreed work and so is incapable, in employment law terms.
Because each circumstance is different you must be able to show that you have taken great care to explore all the other options, and have gone through all the formal warning stages.
Four stages
In essence, you need to follow four stages. If you have gone through all of these you are unlikely to find yourself in breach of the law.
1. Return to work meeting with the employee:
Conduct regular return to work meetings, do your best to understand the cause of the absence, discuss any medical advice given to the employee and plan for the future. Can adjustments be reasonably made to accommodate any treatments and minimize absences in future? You should explain your approach to return to work meetings in your company policies. You can download a free short term sickness absence policy template and a free long term sickness absence policy template from Air, ready to customise to your business.
2. Medical advice:
You must show that you have understood what the employee is capable of doing, and consult to reduce absence levels based on this. Could the person be disabled under the Disability Discrimination Act 1995 (DDA)?
3. Reasonable adjustments:
Legally, you have to show that you have considered any reasonable adjustments that can be made to allow the employee to continue. Of course this depends on the size of the business, the nature of the role, its impact on the business as a whole and a host of other factors.
4. Dismissal:
Ensure that you are clear with the employee that dismissal is one possible outcome, but that you are doing everything you can to prevent this happening through other measures
Document everything that you do and seek advice if you are unsure as employment tribunals will award hefty sums if you are found wanting. Find more great free HR advice to help you run your business here.
