Guidelines for Dismissing Someone with Poor Sickness Absence

For any employer of any company, there is an expected and understandable amount of sickness absence that they can expect from their employees, However, it is also understandable for employers to want to reduce the amount of sick leave and absenteeism by staff to a minimal level. Doing so, however, requires having the right processes in place and having clear policy on what is acceptable or not when taking leave.

This guide shall aim to facilitate employers by giving insight in what should be expected from employees taking leave, what processes should be followed and in worst case scenarios, where disciplinary action can be taken.

Managing Sickness Absence

The first thing that should be said when it comes to managing sick leave for employers is that taking some sick leave is normal and should be expected just as being sick is a normal part of being human. Employers should listen to their employees when it comes to absence in order to not discriminate or make judgements too quickly. More information about discrimination considerations will be covered later in this guide.

Managing Sickness Procedures

It should go without saying that unreported sickness absences, even if for genuine sickness, should be prohibited in any business and can be reason for dismissal in some cases.

It is essential for employees to be aware of what action must be taken when claiming sick leave. A practical way of enforcing this is by having a written policy outlining the correct procedure in reporting absences. Such procedures are a must have in ensuring that employees understand what’s required of them and will help avoid disputes and confusion.

There is no set business standard on what the rules should be for employee deadlines when reporting sickness, so employers do have some flexibility in this regard but should aim to be reasonable. For example, some employers may ask to be made aware of absence an hour before a shift starts if they know their workplace is a busy environment. By requiring notice before shifts begins, this may help some business owners in contacting other staff to fill in for those who are sick.

Employers may express concern where they believe the sickness of an employee is not genuine. However, one shouldn’t make assumptions in this regard. For example, an employee’s involvement in other activities outside of work while on sick leave does not necessarily prove them to be dishonest. Depending on their profession, it may be that their sickness makes them incapable of carrying out what is required in their contract but not anything else they want to do. For example, someone suffering from headaches and migraines may struggle in an office scenario working at a laptop all day but that does not mean to say they are incapable of going on walks.

Where concerns about the legitimacy of an employees sickness are genuine, employers should consider potential medical examinations or requirements of doctors notes where necessary. If it is found that an employee is lying to gain sick leave, this is grounds for disciplinary action.

Where sickness absence is too frequent for an employee, a formal procedure should be in place to deal with this correctly. Employers may consider trigger points in which a formal procedure will begin to take place. Employers should outline how many days of sick leave are acceptable within a 12 month period (or for however long, an employee is under contract). Furthermore, where an employee exceeds an acceptable amount of sick leave, employers should consider inviting them to a sickness absence meeting to help understand if there are genuine reasons for going over the max amount of sick leave given and give notice on any disciplinary action that might be taken.

Carrying out Sickness Absence meetings

First meetings

If an employee exceeds the acceptable amount of sick leave that they are entitled to as laid out by their employer, they may be invited to a meeting to discuss any issues that may be affecting their poor attendance.

For a first sickness absence meeting there is no legal right to be accompanied for it, however it is recommended that this right be given, especially for where disability may be a necessary factor to an employee’s absence. Usually employees can bring company in other staff or trade union representatives but for special considerations, such as for disabled people, family members may also be included.

Employers should give adequate notice to employees for this meeting to allow them to prepare and where sickness is presumed, one should consider the location of the meeting, perhaps at the employees home or a neutral location where disability may be a factor.

Employees should be provided a written letter prior to the interview detailing lists of absent dates for employees with excessive short term absences or the period of absence for employees with long term absences. The letter should provide the date, time and the location of the meeting. It should also provide the employee with the ability to request any necessary adjustments that will help ensure the meeting can be attended.

Letters sent out after the meeting should verify that the meeting took place, any agreed upon plans of action agreed in the interview and a prompt that failure to improve attendance will result in a second meeting.

Relevant points of discussion during the meeting might include:

The reasons for absence
For long term absences, likely dates of return
For short term absences, the likelihood of even more absences
The effect absence has on other employees and the business as a whole
Requests for medical information and medical reviews
Discussion of any relevant benefits including private health cover and pension schemes
An action plan for further meetings if required
Verbal warnings and what is required for improvement if necessary

Second Meetings

Where long term absences or frequencies of short term absences persists, employers might want to consider a second meeting as part of their formal procedure. Similar to the first meetings outlined above, allowing the employee to bring a companion is recommended.

In the case of short term, frequent absences where verbal warnings have been given, the amount of warnings that an employee will receive should be outlined.

The previous point of discussion outlined in the first meeting should be further reflected on but employers may also want to consider:

Medical advice – whether it is needed if it hasn’t been required before. If medical advice has already been given, whether further advice is needed.
Considerations of adjustments that can be made, especially if not already discussed in the first meeting.
Redeployment of a return to work programme if relevant.
Considerations of whether it is appropriate to warn employees that they are at risk of dismissal if poor work attendance continues

Prior to further sickness absence meetings, a written invitation should be sent to the employee in question outlining:

Their history of absence
Evidence obtained such as that of medical records
Why the employee may be in danger of dismissal

Where a formal warning has been issued, a formal letter of warning should follow. This letter should detail that the employee was made aware of what was expected of them and that the formal warning has been given. It should also provide employees with the opportunity to appeal this decision.

Final Meetings

Final meetings are necessary where short term absences exceed what has been agreed in verbal warnings or when long term leave extends through unreasonable lengths of time. Where final meetings like this are necessary, employers might want to consider dismissing the employee.

In final meetings employees must be granted the right top accompaniment. Such accompaniment might include other employees or trade union representatives but for some cases such as where disability is a factor, employers should extend these options to include family members as well.

Talking points of the meeting may include:

A review of meetings that have taken place up until this date
Review of any medical evidence obtained
An outline of any changes made since the last meeting
Any matters that should be considered on the employees behalf
Considerations of dismissal for ill health capacity

Prior to a final meeting such as this, employees should be invited via a written letter just as with the second and first meeting detailing their history of absences and potential dismissal. (See invitation letters above for what should be included)

Employers may by this stage have already made a decision for whether the employee should be dismissed and may advise them of this as part of the meeting. It is also possible for this decision to be made after the meeting however in both cases a written confirmation of the employees decision should be provided in writing after the meeting takes place. If an employer decides to dismiss on the grounds of poor attendance due to sick leave, this letter should take the form of a formal notice of termination. A termination letter should provide the date of the last meeting, the grounds for termination, the opportunity to appeal if necessary. It may also provide details about payments for outstanding holiday and the request to return any company property the employee might still hold.

Employees should be offered a right of appeal if they believe they disagree with the decision. However, a deadline should be in place for employees if they wish to do so.

The Appeal Process and Claims from Sick Employees

In some cases an employee may take issue with the reasoning for their termination and will want to make an appeal. There are several reasons why an employee might make an appeal:

Unfair Dismissal for Sickness Absence

If an employee has been working under contract for over 2 years they have the right to make a claim for unfair dismissal.

Claims for unfair dismissals can be defended by employers provided that they have evidence suggesting that dismissal was reasonable under one of the five reasons listed in statute. Two examples, of of the reasons set out in statute include lack of capability due to ill health, or conduct where employees act in a way that is not in line with the businesses code of conduct.

In the case of poor absence, employers are required to provide evidence that shows that a clear process was followed before dismissal.

Employers should also consider:

Having appropriate evidence of the employees medical condition. This can be done through acquiring medical records and by consulting the employee in question
Whether proper considerations have been made for adjustment or alternative employment for the sick employee if necessary.
Whether reasonable warning has been provided prior to the employees dismissal.

Disability Discrimination

If an employees condition meets the definition of a disability under the Equality Act 2010 , they may be entitled to make a claim for disability discrimination as part of their appeal. People are considered disabled by law if they have a physical or mental condition that effects their ability to carry out regular day to day activities. For some conditions employers may have a right to require medical records detailing the employees disabilities to be able to fully recognise an employee as disabled.

Other forms of Discrimination Relating to Sickness Absence

Although less common, other forms of discrimination that might be questioned as part of an appeals process for sick leave can arise. For example, women going through menopause may have long periods of sick leave. Employers should be considerate where possible and take caution as this may be deemed as discriminatory against women.

Appeal Meetings

If an employee appeals against a dismissal relating to absence they will be invited to a meeting to discuss this with their employer. Just like the other meetings listed previously in this guide, it is recommended that employees are given the right to be accompanied, whether that be with a trade union representative, a work colleague or any other relevant party, for example, a family member for those who are disabled.

Appeal meetings should ideally be led by a representative of the employer who’s in a more senior role to the person who made the decision to make the dismissal. This person must, however, have the ability to overturn the decision to dismiss the employee if they deem it the right decision.

New evidence provided at this stage should be taken into consideration by the organization.. Following this meeting, another written letter should be sent explaining the outcome of the appeals meeting and that the decision is final.

Non Attendance of Meetings

A problem employers may run into when carrying out meetings to discuss poor sickness absence is that some employees may attempt to not show up to the meetings or make continuous and persistent attempts to have said meetings postponed.

There is no formal requirement to have meetings postponed. However, there is some guidance that should be followed in such instances:

For first meetings it is suggested that the employer should re-organise meetings on the basis of a no show and should ensure that the employee has received the invitation for this rescheduled meeting. The delivery of this invitation should be in a form that is recordable, for example; email receipts and written letters. Follow up phone calls should be considered to further ensure that the employee is aware.

For requests for postponement as a result of sickness, these should be granted as long as they can be rescheduled for a mutually convenient date.

If requests for postponement are considered to cause unreasonable delay, medical evidence of the inability to attend may be requested.

If it isn’t possible to hold a meeting within a reasonable timeframe , the employer may proceed with the meeting in the employees absence. However, employees should be given the opportunity to provide a written representation to be taken into consideration during the meeting.

A summary of Important Documents for Dismissal

It is of utmost importance to have all the necessary documentation throughout the process of dismissing absent employees to avoid legal action at an employment tribunal. Employers must have evidence that a clear process was followed in order to justify dismissal on the grounds of sickness absence.

Employers should have evidence of:

Any formal letters relating to meeting invitations, formal warnings and dismissal.
Any doctors notes or medical documents provided by employees when justifying their leave,
Receipts for emails or follow up calls that may be obtained, for example, in the case of an employee not attending any meetings.
All dates of employee sickness absence for short term leaves/ the length of time an employee took off work in an extended absence.

For more information, regarding sickness absence and dismissal visit our website or schedule a call.

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