Jo Seery looks at the various steps employers should take when dealing with persistent short-term sickness absence before they consider the ultimate sanction of dismissal

Despite the government’s claim that we are now in a period of economic growth, many organisations still continue to review their employment policies.

The annual CIPD Absence Management Survey for 2014 reported that more than half the organisations covered by the survey had introduced new measures for monitoring sickness absence. The most common are devolving responsibility to line managers, return to work interviews and triggers to review absence.

The law makes clear that persistent short-term sickness absence can be a fair reason for dismissal. Whether an employer acts reasonably when dismissing an employee on this ground will, however, depend on the reason for the dismissal. 

Identifying the reason for dismissal

If it is due to skill, aptitude, health or any other physical or mental quality then the reason for the dismissal is capability and employers are expected to follow a certain procedure.

However, not all dismissals for short-term sickness absence are because of capability. In Wilson -v- Post Office, for instance, the Court of Appeal held that dismissal for high levels of short-term sickness absence amounted to a failure to meet attendance targets or a failure to comply with an attendance procedure and therefore the dismissal was for some other substantial reason (SOSR).

In other cases, an employee may be dismissed for misconduct but this should be limited to cases where the reason for the absence is not genuinely due to health. The courts have cautioned against treating absenteeism for health reasons as dismissal for misconduct, as in Lynock -v- Cereal Packaging. 

Capability or some other substantial reason

It is not always easy to identify whether the reason for the dismissal is capability or SOSR. Employees who are dismissed for the latter when the reason was, in fact, due to ill health absence (and therefore on grounds of capability) may succeed in a claim for unfair dismissal if the employer has not acted reasonably.

Case law has established that employers have not acted reasonably unless they have:

  • Carried out a fair review of the attendance record and reasons for the absence
  • Given the employee an opportunity to make representations, and
  • Warned the employee that they may be dismissed if things don’t improve. 

Carrying out a fair review

Although employers are not expected to obtain a medical report when reviewing short-term sickness absence, they are expected to consider whether there is any underlying cause for intermittent or unconnected periods of sickness absence.

Employees are advised to see their GP to establish if there is an underlying cause for frequent absence because of sickness even if the reasons are unconnected. If, however, they are due to an employee’s disability, and the employer ought reasonably to have known about it, they could be liable for a claim for disability discrimination.

Many employers have attendance or absence policies that can trigger the capability or disciplinary procedure. Typically these state that, when sickness absence reaches a certain level, then the capability or disciplinary procedure is triggered. For example, three periods of sickness absence in a rolling, 12-month period may trigger a first interview with further absence triggering the next stage of the procedure.

One such trigger absence procedure, which seems to be rearing its ugly head again, is the Bradford factor, which involves multiplying the square of the number of periods of absence by the number of days.

This is designed to weigh more heavily against short-term absences. For example, one period of five days absence will give a Bradford factor of 5 (1²x5 = 5) whereas five periods of one day’s absence will give a Bradford factor of 125 (5²x5). The higher the factor the more likely the employee will be progressed through the capability or attendance procedure.

This approach could put those who have a disability at a particular disadvantage if the disability causes them to have frequent short-term absences.

However, there is no rule that an employee who is dismissed because some short-term absences are related to disability is always unfair. Where the majority of absences are due to disability the employer should follow the procedure for long-term sickness absence (see earlier article Pg 2). 

Opportunity to make representations

Frequently, employers carry out a return to work interview following a period of absence. It is important at this interview that employees inform the employer if they have an underlying medical condition or if there are other reasons for their absence such as domestic violence or work-related stress.

Tribunals are more likely to expect employers who are aware of the underlying causes to treat the employee with sympathy, understanding and compassion, as in Lynock -v- Cereal Packaging.

Employers who make assumptions about an employee’s sickness absence and dismiss them for misconduct without investigating the reasons for absence or consulting with them are likely to be found to have unfairly dismissed the employee. 

Giving warnings

Employment tribunals take the view that there comes a time when the employer is entitled to say that enough is enough. In that case, tribunals will also take into account whether the employee was warned that their absence was at a level that might result in dismissal and if the employee was given an opportunity to improve.

There are, however, no hard and fast rules as to the level of absence at which it is reasonable for an employer to dismiss an employee; that will depend on the circumstances of the case.

Acas guidance on disciplinary and grievances recommends that employees should be told what improvement in attendance is expected and warned of the likely consequences if this does not happen. As a result, many employers keep absence records to monitor it accurately.

Employers should not dismiss employees because of absence just to make a point nor should employers add on warnings for absence to other matters in order to justify a dismissal.

Likewise employers must stand by the warning. For example, in Scott -v- Birmingham City Council an employee was warned that, if he had further sickness absence within six months, a capability hearing would be held. A letter was sent to the employee giving him a further six months to improve his attendance.

Two months after sending that letter the employer dismissed the employee at another capability hearing. In that case, the tribunal held that, having given the employee a further six months to improve, the employer had misled the employee and therefore the dismissal was unfair.

Opportunity to improve

Similarly employers who fail to take into account the fact that the employee has improved may be held to have unfairly dismissed them. Having said this, an employer can rectify this error at the appeal stage.

The Acas guide provides that if there is no improvement then employers should take account of the following when deciding what action to take:

  • The employee’s length of service
  • The likelihood of a change in attendance
  • The availability of suitable alternative employment, and
  • The effect of past and future absences on the organisation.

The fact that an employee has long service does not mean that the employer is required to undertake a more thorough investigation, as in Dundee City Council -v- Sharp.

However, if the employer has caused the employee’s ill health they would be expected to go the extra mile in seeking suitable alternative employment, as was found in Royal Bank of Scotland -v- McAdie.

Tribunals can take into account past absence records as well as the likelihood of future absences when determining whether or not dismissal for persistent short-term absence is fair.

The fact that an employee is still entitled to sick pay at the time of dismissal will not necessarily make the dismissal unfair.

Conclusion

Where there is a collectively agreed capability or attendance procedure, the employer should follow this before dismissing an employee for short-term sickness absence. Where there is no agreed procedure, the employer should follow the steps outlined above.

Likewise employees should ensure that they provide evidence of any underlying causes of short-term sickness absence, particularly if the absence is work-related, so as to put the onus back on the employer to consider alternatives to dismissal.Â