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Sickness Absence

A survey by the Chartered Institute of Personnel and Development in 2003 estimated that the total annual cost of employee absence due to ill health to UK business was £567.00 per employee.     A certain degree of sickness absence is accepted by most employers but problematic sickness absence tends to fall into two categories :-

  • frequent short term absences over an extended period ; or
  • a single longer term absence.  

Frequent short term absence

There may be many possible reasons for frequent short term absence including colds, stomach upsets, longer term recurrent problems and also less genuine explanations may be given.   Unless clear evidence exists that suggests a misconduct issue employers should approach sickness absence with sympathy and understanding.  This does not mean, however, that appropriate steps to managing sickness absence cannot be put in place by employers who are entitled to take measures to try and reduce the level of absence but in doing so it is essential that fair procedures are followed.  A decision of the Employment Appeal Tribunal held that :-

Where an employee has an unacceptable level of intermittent absences due to minor ailments, what is required is, firstly,  that there should be a fair review by the employer of the attendance record and the reasons for it; and, secondly, appropriate warnings after the employee has been given an opportunity to make representations.  If there is then no adequate improvement in the attendance record, in most cases, the employer will be justified in treating the persistent absences as a sufficient reason for dismissing the employee.    

A fair procedure for managing sickness absence might include :-

reviewing attendance records and the reasons given for the employee's absence;

  • discussing with the individual employee his/her absence record informally and advising of the consequences of continued unacceptable absences;
  • allowing a period of time for the employee to improve his/her absence record;
  • where the absence record fails to improve considering disciplinary proceedings in accordance with the statutory procedures.

In many cases it may be prudent for an employer to request the employee to provide consent for his/her GP to be contacted by the employer and asked to comment upon whether there is an underlying medical explanation for the frequent absences and whether any such health condition can be better controlled in the future.

An employer must, however, also bear in mind the impact of the Disability Discrimination Act 1995.      Any dismissal of an employee (or other less favourable treatment) for frequent short term absences as a result of a recurring medical condition that amounts to a disability with the meaning of that Act may amount to discrimination. Dismissal of an employee for frequent short term absence due to ill health may, therefore, result in a claim to an Employment Tribunal not only for unfair dismissal but also disability discrimination where compensation is unlimited.      To qualify to claim unfair dismissal the employee will need to have one years continuous employment but no such requirement is needed to pursue a claim under the Disability Discrimination Act.   

This is a complex area of law and employers would be well advised to seek appropriate legal advice if action is contemplated against an employee as a result of frequent short term ill health absence.

Long term sickness absence

This, in many respects, is a more complex area.    The Health and Safety Executive define long term sickness absence as an absence of four weeks or longer.    A policy of maintaining contact with sick employees is important as is their involvement in planning a return to work with, if necessary, flexible working arrangements.  Research available indicates that employers operating return-to-work programmes save money in the long term as one in five employees off sick for six weeks or more ultimately fail to return to their job.  As part of the process of maintaining contact with an employee during long term sickness absence employers should ask to be kept informed of medical appointments, prognoses and anticipated return to work dates.  Consideration should be given to what changes to the employee's working conditions or other arrangements might be made to accommodate the employee and secure an earlier return to work.  Approaches to the employee's GP/Consultant should be made and possibly to the employer's own medical adviser with a view to seeking responses to the following questions :-

  • when it is anticipated the employee might return to work?
  • whether the employee will have any ongoing disability at that time?
  • if such disability will exist how long it might last?
  • whether the employee is likely to be able to render regular effective service for the employer upon a return to work?
  • whether any adjustments need to be made to assist the employee with a return to work such as allocating some of his or her duties to another, altering the working pattern and possibly transferring the employee to another position?
  • whether the employee will be taking medication or undergoing any other treatment upon return to work and whether this would affect his/her ability to undertake his/her duties?

It is important to also bear in mind the impact of the Data Protection Act 1998 upon the obtaining of medical reports for this purpose.  A Code of Practice on Health Records exists and guidance  provides that managers should only receive such information as is necessary to allow them to fulfil their management duties.   Any disclosure of an employee's sickness records outside the guidance provided is likely to constitute a breach of the Act and have potentially serious consequences.

Having obtained and considered the medical evidence an appropriate procedure for an employer to follow might be to :-

  • consult with the absent employee face to face to consider whether the employee accepts the medical report and the prognosis given therein.     
  • consider whether the meeting with the employee should be at his/her home or at a neutral location if the employee is reluctant to come into the work place.   
  • regularly consider the question of reasonable adjustments.   This should not occur simply when the possibility of a return to work is being considered but at earlier stages as a reasonable adjustment may be required to continue pay in situations where contractual entitlement to sick pay is being affected due to the length of sickness absence.

If it becomes apparent that the employee can no longer perform his or her job and the prospects of a return to work in the foreseeable future are remote, and no reasonable adjustments can be made to facilitate a return to work consideration may be given to termination of the employee's contract of employment.   It may be possible to justify a dismissal on the grounds of capability and the leading decision in this area [Spencer v Paragon Wallpaper Limited - 1976] held that the basic question to be considered in every sickness absence case is whether, in all the circumstances, the employer can be expected to wait any longer for the employee to return to work and, if so, how much longer?  In order to make a reasonable decision the employer must balance a number of factors including :-

  • the nature of the illness;
  • its likely future duration;
  • the time that the employee has worked for the employer;
  • the need for the employer to have the work performed by the employee done;
  • the effect of the employee's absence on other members of the workforce;
  • the need to employ a replacement for the employee.

If a fair and reasonable procedure along the above lines is adopted by an employer a claim by a dismissed employee for unfair dismissal or disability discrimination is less likely to succeed.    This is, however, a complex area of law and it is recommended that appropriate legal advice should be taken at all stages of the process and particularly before a decision to dismiss is taken.

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