What amounts to unacceptable absence?
This usually consists of either persistent absence from work, or poor time keeping that are unrelated to any underlying medical condition, both of which are considered to be absenteeism. Absence caused by an underlying medical condition should be considered and dealt with differently.
How is absenteeism monitored?
Employers will retain records of all absences and review that information to identify unacceptable levels of absence. This is a matter for the employer to determine having regard to reasonable standards of attendance. Those levels may then be communicated to staff in the form of policies, meetings and back-to-work interviews.
How should absenteeism be dealt with?
Absenteeism that has no link to any underlying health problem should be dealt with under the disciplinary procedure (see below). If absence is linked to an underlying health problem, then this should be dealt with in the same way as long-term absence (see below).
How should long-term absence be dealt with?
The employment contract will usually stipulate a level of absence that will trigger the right to terminate on the grounds of illness. In the meantime the employer and employee should remain in communication regarding that absence, which should be medically certified. In the absence of any provision for termination the employer must identify an unreasonable level of absence before consideration is given to termination. In either case careful consideration should be given to the nature of the employee’s condition since a long-term illness or condition may constitute a disability which could give the employee additional rights. The employer must determine all the facts and consult with the employee before making any decisions, including explaining in writing in advance the prospect of termination of employment and the reasons for that.
What considerations should an employer take into account?
Before any termination of employment the employer must investigate:
- the nature of the illness and the absence record
- how long the illness is likely to continue and the likelihood of any further recurrence
- whether a return to work in the employee’s former role is practical, or any suitable alternative role that is available
- the impact of the absence on the business and colleagues and any potential cost
- decisions taken in similar circumstances in the past
If there is no reasonable prospect of the employee returning to the existing job in the foreseeable future because of ill health, the employer must consider whether any alterations can be made to that employee’s existing duties, or working arrangements to facilitate a return to work. This may include the reallocation of duties, or altering working hours.
What if the employee’s condition amounts to a disability?
The Equality Act 2010 sets out a specific test for identifying whether or not a person has a disability (see Discrimination) and medical advice may be required to determine this. If an employee has a disability then the employer is under a specific legal duty to consider whether there are any adjustments that can reasonably be made to assist the employee in a return to work, either to the employee’s role or a suitable alternative role. An employer must also avoid subjecting the employee to a detriment (including termination of employment) by reason of that disability.
What investigations can be undertaken?
An employer can investigate the nature of an employee’s health problems by (1) consulting with the employee, and/or (2) writing to the employee’s GP to obtain a report having obtained the employee’s consent in writing beforehand, and/or (3) referring the employee to the employer’s medical specialist having obtained the employee’s consent in writing beforehand to the release of medical records. Employers will usually approach the employee’s GP first and, if the report is unclear or unhelpful, may also seek specialist medical advice. In most cases if an employer is considering terminating employment then specialist medical advice will be required.
What if the employee refuses to cooperate?
An employee’s consent is not required to obtain specialist medical advice, but if an employee refuses to give the required consent or to cooperate over arrangements then an employer may be obliged to make decisions in the absence of this information. This, and the implications for the employee, should be explained in writing beforehand. In some circumstances, an employee’s unreasonable conduct may also justify disciplinary action.
How should an employer consult with an employee?
A meeting to consider the medical evidence should be arranged once this has been obtained and shared. The employee is entitled to be accompanied by a representative. The principal intention should be to secure the employee’s safe return to work and the assistance required to facilitate this. A reasonable timescale should be agreed over which the employee can return to work, either in their existing role or an alternative role.
Can an employee’s employment be terminated?
Each situation must be considered on its own circumstances, but if there is no prospect of a return to work in the reasonably foreseeable future then an employer can consider termination. No decision should be taken without further consultation and the employee must be informed in writing of the potential consequences of continued absence. The termination process in the disciplinary procedure should be followed and ACAS guidelines.
What if the employee has the benefit of a company PHI policy?
There is an implied contractual term that if an employee is entitled to PHI then an employer will not, without any other substantial reason, terminate so as to prevent the employee receiving benefit of the policy.
If that term is breached then an employee can seek damages linked to the value of the benefit lost, which may be substantial.
What is the employee entitled to on termination of employment?
An employee is entitled to receive full contractual notice pay (or statutory notice entitlement, if more) as well as any benefits during that period. Notice must be paid at the contractual rate despite entitlement to contractual sick pay having expired, unless the employee’s contractual notice entitlement exceeds the statutory notice entitlement by 7 days or more. Special tax rules may also apply to ill-health termination payments