Partner Article

Sickness: Manage it properly, or pay the price

As an employer, if you do not follow a fair and proper procedure when dismissing staff for absence it will probably lead to costly claims at the Employment Tribunal for disability discrimination and unfair dismissal. The average Employment Tribunal awards last year were; £27,235 and £32,115 respectively. Such claims are bound to increase as sacked employees struggle to find alternative employment in the current job market.

Dismissal should be the last resort when dealing with a legitimate illness. If employers fully comply with all four of the following stages, they are unlikely to fall foul of the law.

As there may be a potential dismissal involved in these proceedings, employers must comply with the Acas Code of Practice for Discipline and Grievances. The Code can be downloded from the Acas Website.

Stage one: Meeting with the Employee

Managers or Supervisors should conduct regular return to work meetings. They should meet with any staff with high levels of absence to discuss the cause of the absences, any medical advice the employee has received, the liklihood of future absences and possible job changes that would reduce the absences. Employers should discuss possible return to work dates for long term absences and plans to assist the employees when they do return.

Stage two: Medical input

There may be an underlying cause for regular absences. Employers need medical input to understand what an employee is capable of doing, to find out if there are any adjustments that could be made to the employees’ role to reduce absence levels, and get a view on whether the employee is disabled under the Disability Discrimination Act 1995 {DDA}. Any medical input should be discussed with the employee as part of the consultation process.

Stage three: Reasonable adjustments

Employers have a legal duty to consider any reasonable adjustments to enable employees classed as disabled under the DDA to continue to perform their roles. Dismissing employees not classed as disabled is also more likely to be fair if the employer has considered possible adjustments and alternatives. Whether or not the adjustments are reasonable will depend on:-

• The practicability
• Cost and the likely effectiveness of it
• The employers financial resources
• The organisation’s nature and size and
• the extent to which the employee and possibly other staff, are willing to co-operate with the changes.

Stage four: Dismissal

When contemplating termination of employment, employers should have a full and up to date picture of the employees’ medical condition and to demonstrate having given serious consideration to alternatives to dismissal. Employers should also have taken in to consideration:-

• Length of service
• Performance
• Whether there is likely to be a change in attendance
• Whether suitable work is available and
• The effect of the employees’ absence on the company

This can prove to be a complex area and professional advice should be obtained before taking any action. These notes are not to be substituted for specific professional advice.

This was posted in Bdaily's Members' News section by Andrew Dane .