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Where an employee’s level of sickness
absence may eventually require the employer
to consider the possibility of dismissal, if
that dismissal is to be judged as fair the
employer must be able to show that:
- the employer was adequately informed
about the employee's illness; and
- the decision to dismiss the employee
was reasonable in light of that
information.
Consultation and Discussion - With
the Employee
Consultation and discussion should
first be undertaken directly with the
employee. The employer should seek to
find out from the employee the true
nature of the illnesses). Such
consultation should not at this stage be
deemed or referred to as a disciplinary
procedure or a “warning” about the
employee’s levels of absence. Such
phrases are linked to misconduct, and
are not appropriate where it is actually
an employee’s capability to carry out
his or her job due to ill health
absence, which is actually in issue. The
emphasis at this stage must be, at least
ostensibly, on “sympathy, understanding
and compassion”.
There is no set procedure for such
consultation, the emphasis being on the
employer taking such steps as are
necessary according to the individual
circumstances of the case to gather
information upon the true medical
position. Full records of the
absenteeism should be kept and these
should be drawn to the employee's
attention.
Consultation and Discussion - After
Medical Advice
Following on from consultation with
the employee the employer should consult
a doctor about the nature of the
employee's illness. This may be with the
employee’s own doctor and/or with an
independent doctor appointed by the
employer. The employee's consent to such
an examination will be required and the
employer cannot insist on the
examination. However, if the employee
refuses to agree to a request to be
medically examined the employer will
have to act on the basis of the facts
which are available. In such cases an
Employment Tribunal would take account
of the refusal and the dismissal may be
fair even if, had medical opinion been
available, it would have been unfair.
The employer has a duty to consider
what reasonable measures may be
introduced to alleviate such working
conditions which may be contributing to
or exacerbating the illness (e.g.
stress).
Such considerations should include
the possibility of offering the employee
alternative employment should such a
position be available. If there is no
underlying illness and no real problem
with work, and the absenteeism is at a
level to justify it, a warning must
inevitably be considered as the next
step.
Dismissal
Once information on the medical
condition has been gathered by
consultation with the employee and a
doctor it may become necessary for the
employer to consider dismissal if the
employee's attendance record has failed
to improve. The factors to be weighed up
on considering whether such a dismissal
is fair or reasonable will include:
- the duration of the illness
(whether temporary or permanent)
- the likelihood of recurrence on
a regular basis (the disruptive
effect)
- the length of the various
absences and the space of good
health between them
- the employer’s need for the work
done (finding replacements)
- the length of the employee's
employment (including any previous
good record)
- the impact of the absences on
others who work with the employee
(overtime)
- the extent to which the
difficulty of the situation and the
position of the employer has been
made clear so that the employee
realises that the point of no return
is approaching
Records
Consideration of the factors (and
the gathering of evidence in respect
of the same) referred to above
should start from the outset and
full records should be kept.
Clearly, of fundamental importance
are the terms of the employee's
contract which may provide for
termination after certain levels of
absenteeism. Also details of the
number of days taken off through
illness and their regularity should
have been made clear to the
employee.
The Disability Discrimination Act
1995
When carrying out the above
procedure in cases of sickness
absence an employer should consider
whether the illness constitutes a
disability within the meaning of the
Disability Discrimination Act 1995.
This Act has implemented significant
new rights for disabled people to
prevent discrimination. See separate
section on Discrimination.
Discrimination occurs when a
disabled person is treated less
favourably than other people for a
reason related to his or her
disability, and this treatment
cannot be justified. Discrimination
also occurs if an employer fails to
make reasonable adjustments to
ensure that employment arrangements
or premises do not put a disabled
person at a disadvantage in
comparison to a non-disabled person
and the failure cannot be justified.
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