12 May / 2021

Challenging absence

first_img Comments are closed. Challenging absenceOn 2 Sep 2003 in Personnel Today Related posts:No related photos. Derek Kemp of Human & Legal Resources outlines how to deal withpersistent absence in the workplaceDespite HR professionals being well acquainted with the costs associatedwith absence, they have to accept that organisations employ people, not robots;and people will call in sick from time to time. But what if an employee’sintermittent absence level becomes unacceptably high, or a long-term absentee’sjob needs filling on a permanent basis? Irrespective of whether we thinkemployees’ excuses are suspect or we have genuine sympathy for them, therecomes a time when action becomes necessary. The process to be followed depends upon the nature of the absence record –is it long-term or is it intermittent? Persistent short-term absences from work For a tribunal to recognise that an intermittent absence record isunacceptable, there should be: – A fair review by the employer of the attendance record and the reasons forabsence – An opportunity for the worker to make representations – Appropriate warnings of dismissal if things do not improve. Of course, if investigations suggest that there may be an underlying medicalcondition, the employer should seek proper medical opinion to determine theextent and likely duration of the condition. If it becomes clear that thenature of the condition is such that there is unlikely to be any improvement, thecase should then be regarded as one of long-term illness, and appropriate stepsshould be taken (see below). [Hint: We have all been tempted to question a GP over a sick note – don’tbother, it is not worth the trouble.] Although ‘warnings’ or ‘cautions’ may seem inappropriate in cases ofillness, they are a necessary measure. The following considerations have beentaken into account at both tribunal and Employment Appeal Tribunal (EAT)levels: – Nature of any illness – Likelihood of reoccurrence – Length of absences/spacing of good health – How important the job is to the employer – Impact of the absences on the team – Adoption and the exercise of carrying out the organisation’s policy – The requirement to take into account the employee’s views – The employee’s awareness that the moment may be approaching when thedecision to dismiss may be made – The general effect on output or sale (particularly important in smallerorganisations where there is less possibility of arranging cover for work) – Special nature of employment, which may require a higher than usual levelof attendance or that employees be of robust health. This only applies wherethere is a particular clause within the contract of employment. The dismissalcan therefore be deemed to be a result not merely of ill health, but forfailing to meet an essential requirement of the contract. Assuming that the appropriate procedural steps (similar to your disciplinaryprocedure) have been taken, the fairness or otherwise of the decision to dismisswill boil down to the question of ‘whether, in all the circumstances, theemployer can be expected to wait any longer and, if so, how much longer’. Thisis done by balancing the interests of the employer with those of the employee.The employer must show that the sanction of dismissal is within the range ofresponses that a reasonable employer would make. The decision to dismiss is anemployment decision not a medical one, to be made by the employer in the lightof the available evidence. Other important factors to consider include: – Any recent improvement in the employee’s attendance record – The employee’s past and likely future service – The importance of the job and the feasibility of employing a temporaryreplacement – Where an employee is in a key position, a shortening of the procedure maybe justified. However, a ‘key’ employee is only likely to be one without whomthe employer’s business cannot properly function – The effect of continued absence or illness on other employees. Other employeesmay be affected – such as where they lose a team bonus, or where anindividual’s ill health causes frightening or violent behaviour. [HINT: If you have a generally high level of intermittent absences, we havefound it is possible to halve it by scrapping the self-certification form.Replace it with a requirement for the employee to write a note (on their ownpaper) to their manager for approval at the return-to-work interview. Peoplefind it far harder to lie about their absence on their own paper than on yourform.] Long-term sickness The key to a fair dismissal is a fair procedure. Such procedure consists oftwo elements: – Medical investigation – Consultation with the employee. Sufficient medical enquiries should be made to enable the employer to makean informed decision about the continued employment of the employee. The first step is to ascertain the seriousness of the illness and its likelylength and effect. Often, though not always, this will involve obtaining amedical opinion. It is essential for the employer to ascertain the precisenature of the illness or disability wherever possible and a predicted period ofabsence. However, it is critically important that the employers do not rely on amedical opinion alone. Employers must discuss medical information with theindividual concerned and should not set themselves up as medical experts – thedecision to dismiss is not a medical question, but an employment question to beanswered by the employer in the light of available medical advice. The firstmedical opinion sought should be that of the employee’s own doctor. The information normally requested is: – the nature of the illness – the expected period of absence – the type of work the employee would be capable of upon their return. [HINT: In some cases it is identified that the employee may be able toreturn to work on ‘lighter duties’ or on a phased part-time basis. This isoften beneficial to all concerned and helps you assess what they are capableof. However, it is worth setting regular reviews so the employee’s progress canbe monitored and the arrangements changed to reflect their recovery (orotherwise) from the illness/condition.] Extra care Extra care is necessary in all of the following cases. Pregnancy dismissals: These are automatically unfair if the reason or principle for the dismissalis that the employee is pregnant or there is any other reason connected withpregnancy. Disabled workers: An employer must consider an employee’s personal circumstances, includingany disability, when deciding when to dismiss. This means that the standard bywhich a disabled worker’s performance is measured must take into account his orher disability. If, after making such allowances, the employee’s performance isstill below par, then dismissal may be fair. Mental Illness: The EAT has stated that ‘incapacity on the grounds of mental health is anexceptionally delicate and sensitive field’. Therefore, while dismissals involvingmental health should be approached in a similar manner to other types ofillness, there must be even greater tolerance and support. Drink and Drugs: The difficulty in this area, for the employer, is to determine whether todeal with the issue as one of misconduct or ill health. If an employee’smisconduct or deterioration in performance is due to chronic alcoholism or drugaddiction then a disciplinary procedure is inappropriate – sickness proceduresshould be used and medical opinion sought. Previous Article Next Articlelast_img read more