General Considerations
Classify absence into long-term sick leave or frequent periods of short-term absence, and whether medically certified, self-certified or uncertified.
Exclude contractual or statutory maternity leave from this assessment.
Short-term absence
Analyse short-term absence to determine any conspicuous patterns (e.g. Fridays, Mondays, more in summer than winter, etc).
Have clear arrangements in your terms and conditions of work for employees reporting sick. Make the failure to observe the rules a matter for disciplinary action. The practice of leaving messages with telephonists or anyone else at random should not be regarded as insufficient.
If you suspect a false reason for absence on health grounds, conduct a Return To Work interview as part of your investigation into the matter. Falsely purporting to be absent on grounds of ill health is serious misconduct and can mean an employee has obtained contractual sick pay or SSP fraudulently.
Where you identify an unacceptable level of short-term absences: -
• The line manager should discuss with the employee his or her record. Make it clear that an improvement is expected and that, if the situation does not improve, the continued employment of the employee will be reviewed.
• Monitor the employee’s attendance and, if it does not improve, interview the employee again and commence the first stage of the three-part disciplinary procedure.
• You may wish to consider referring the employee for examination and report by your doctor (in accordance with the contract of employment), or ask for a report from the employee’s doctor. (nb the rules governing access to medical reports).
With all the information to hand, you may consider: -
a/ acceptance of the situation.
b/ transfer to another job.
c/ termination of the contract.
Note:
Always seek advice before termination or retirement on the grounds of ill-health.
There may be an opportunity for an employee in this situation to claim unfair dismissal, perhaps on the grounds of discrimination. (an employee does not have to be registered disabled to make a claim under discrimination laws)
Long-term sickness
Keep in touch with the employee. Offer assistance, if appropriate, and assess the employee’s expectations for a return to work.
If a return to work in the reasonably foreseeable future is not expected, advise the employee that you propose to seek independent medical opinion.
Having regard to the effect of the absence on the business, consideration could be given to the continued employment of the employee.
If management concludes that dismissal is appropriate, the employee should again be consulted about his or her medical condition and absence on the affect on the running of the business. Considered the employee’s response before a dismissal decision is taken.
The dismissal procedure that would then follow should take into account and contractual rights, particularly in respect of sick pay. It might constitute a breach of that contract to terminate it before the end of the sick pay entitlement.
It can be argued that the intervention of a certificate of the employee’s permanent unfitness for the continued performance of the job renders the contract as of no effect from the date of signature of the certificate. If, on medical grounds the employee is no longer capable of carrying out the work, the contract of employment could be held to have been frustrated.
Note:
Each case can be substantially different from every other and should be treated on its merits.
Be sure to treat employees equally.
Always ensure that your terms and conditions of work permit the action you propose taking.
Before any decision to dismiss on health grounds is taken, you should always take advice.