Employers dealing with poor attendance are often dealing with cases of genuine medical symptoms where the absences have been authorised. Nevertheless, there comes a time when an employer, especially a small business, is so inconvenienced by the number and frequency of the absences that action needs to be taken. Small employers often feel powerless to deal with this issue, but when absences become commercially damaging, it may be fair to dismiss an employee after due warnings.
Reviewing absence records
Employers are expected to investigate the facts, in particular the employee’s attendance record and the reasons for the absences. A failure to carry out personal interviews will be damaging in a subsequent unfair dismissal case.
ACAS offers guidance to employers on how to handle persistent short-term absenteeism:
(a) absences should be investigated promptly and the employee should be asked to provide an explanation;
(b) where there is no medical evidence (eg self-certified absences), the employee should be asked to consult a doctor to establish whether medical treatment is necessary and the underlying reason for absences;
(c) if it appears that there were no acceptable medical reasons for the absence the matter should be treated as a conduct issue and dealt with under the disciplinary procedure;
(d) where absences arise from temporary domestic problems, the employer should consider whether an improvement in attendance is likely;
(e) in all cases the employee should be told what improvement in attendance is expected and warned of the consequences of failure; and
(f) if there is no improvement, the above factors and the effect on the business should all be taken into account in deciding appropriate action. This is especially relevant to small businesses, where absences create more disruption.
Where there are acceptable medical reasons for the absence, this becomes a capability issue (rather than a conduct issue) and employers need to bear in mind the disability provisions in the Equality Act 2010, in particular the obligation to make reasonable adjustments and consider redeployment.
Warnings and cautions
It is necessary to draw a distinction between disciplinary warnings issued in cases of misconduct and a warning letter or ‘caution’ issued in cases of genuine but disruptive absence. Warnings or cautions should be sympathetically worded.
Employment tribunals have stressed how important it is for employers to advise that the level of absenteeism is unacceptable, that the absence record must improve and in what time it must improve, and what the consequences will be.
Is medical evidence necessary?
There is no rule of law that requires employers to obtain a medical opinion. It would be reasonable in most cases for an employer to check whether or not there is any serious underlying medical condition which explains the absences. The employee’s consent will be required before any medical examination can be undertaken.
Absence control policies
Although there is no legal requirement to have a formal absence control policy, it is useful to adopt one in order to convince a tribunal that you have acted reasonably in dismissing an employee because of a poor attendance record. If there is no formal absence control policy there is a danger of inconsistencies in the way that similar cases are handled.
Commercial factors
The effect on the business is an important factor. The degree and nature of the difficulty a small employer faces with absenteeism in a particular case is an important and powerful argument in any unfair dismissal claim.
Dealing with the ‘malingerer’
Someone who claims that absence is due to sickness or injury, when it is not, may be committing a number of misconduct offences and can be dealt with under normal disciplinary procedures. It may be difficult to establish malingering where a sick note signed by a doctor has been received. However, in exceptional cases, a sick note can be challenged.
It will be gross misconduct if the employee has falsified company records e.g. medical questionnaires or self-certificates. A proper investigation should always be carried out before any conclusions are drawn. The employee should be given the opportunity to state their case and appeal against any decision that is made.
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