Managing sickness absence raises both legal and human resources issues. This guide provides an overview of how employers should manage sickness absence and go about making sickness-related dismissals.
Sickness absence can take different forms, such as recurrent short-term absences or long-term absence. A fair procedure is required before dismissing an employee for either persistent short-term or continuous longer-term absence. This can feel difficult, for example, employers are often wary of dealing with individuals who have been off sick for a prolonged period, especially where the cause of their sickness is not clear or they are awaiting diagnosis. The key steps in a fair procedure are set out below.
In some cases, sickness absence may not be genuine and employers should consider what further investigations should be undertaken and whether disciplinary action should be pursued.
Poor attendance or frequent short-term absences – essential ingredients
Before an employee can be fairly dismissed for poor attendance or frequent short-term absences the employer must be able to identify the attendance standards expected of the employee and demonstrate that the employee was made aware of and failed to meet those standards.
A fair procedure should be followed, which includes:
- transparent and consistent application of the employer's sickness absence procedure;
- a fair review of the attendance record and the reasons for the absences;
- an opportunity for the employee to state his case and to improve attendance;
- appropriate warnings of dismissal if attendance does not improve;
- a right of appeal against dismissal, if appropriate.
The employer should investigate any underlying reasons for the employee's poor attendance record. If there is an underlying medical cause a medical report may be necessary - particularly if the condition could amount to a disability under the Equality Act. In cases where the employee has a disability the employer should consider reasonable adjustments to the job or to the work environment. There may also be a requirement to offer suitable alternative employment to a disabled employee.
In all cases, consider whether any adjustments to the employee's job or work environment would reduce the level of sickness absence.
The decision to dismiss the employee must be within the range of the reasonable responses available to a reasonable employer. Before dismissal, the employer should consider whether a transfer to alternative employment or other alternatives to dismissal are appropriate.
Employment tribunals will take the size and administrative resources of an employer into account when deciding relevant cases.
The Acas Code of Practice on Disciplinary and Grievance Procedures (16-page / 1MB PDF) does not apply to dismissals for poor attendance or frequent short-term absences.
Long-term sickness absence – essential ingredients
Before an employee can be fairly dismissed for long-term sickness absence the employer should investigate the medical position fully with a view to establishing:
- the nature of the condition;
- the prognosis for a return to work within a reasonable timescale;
- whether there are any adjustments the employer can make to help the employee return to work;
- alternatives to dismissal, such as alternative employment.
The employee should be aware of the reasons for the proposed dismissal, and have an opportunity to state his case before a decision is taken.
The decision to dismiss the employee must be within the range of reasonable responses of a reasonable employer, having regard to the prognosis for the employee's return to work and the impact of the absence on the business. It will typically be unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired.
Where an employee is receiving, or has the prospect of receiving, benefits under a Permanent Health Insurance (PHI) Scheme, seek legal advice. Dismissing in these circumstances may be unfair and amount to wrongful dismissal. The damages for wrongful dismissal may be very significant in these cases.
The employer should consider all reasonable adjustments to the job or work environment which could make it easier for the employee to return to work. There may also be a requirement to offer any available suitable alternative employment to an employee who is 'disabled' under the Equality Act.
Employment Tribunals will take the size and administrative resources of an employer into account when deciding relevant cases.
The Acas Code of Practice on Disciplinary and Grievance Procedures does not apply to dismissals for long-term sickness absence.
Sickness policies and procedures
Having an effective policy in place, including the use of return to work meetings, will help employers to deal with absences consistently and effectively as well as giving notice to employees about the standards of attendance and reporting that the employer expects from them.
Procedures for absence other than illness
Employers should ensure that they have appropriate procedures in place for dealing with time off work for reasons other than sickness. These reasons include:
- domestic emergencies;
- arranging care for children or dependents;
- compassionate circumstances.
Some employers may also offer paid time off or flexible arrangements about taking holiday entitlement at short notice in these circumstances.
Offering flexible working arrangements which accommodate employees' responsibilities or interests outside of the workplace and allow them, for example, to make time up for doctors' and dentists' appointments may result in staff being less likely to call in sick for a minor ailment or in circumstances where the reason for absence is unconnected with illness.