You may have reached the point where you consider that dismissal is the only avenue left. However, you need to take into account what Employment Tribunals will look at when determining whether a dismissal was fair.
Employment Tribunals will look into the reason for the dismissal.
It may be potentially fair to dismiss an employee on the basis of their conduct. This is if they tell you they are being sick when they are actually fine.
Likewise, it may be fair to dismiss the employee on the ground of capability, if their persistent absences negatively affect their ability to fulfil their work obligations.
It may also be fair to dismiss for some other substantial reason, if their absence is having a harmful impact on the business.
Acting reasonably in the circumstances
An Employment Tribunal will also look to see whether you have considered all the circumstances of the individual case. This is not an exhaustive list, but they will take into account the following to see if the employer acted reasonably:
- the nature of the illness if applicable
- the likelihood of the employee’s attendance record improving in the future
- the duration and frequency of the absences
- the periods of attendance between the absences
- the impact these absences are having on the rest of the team.
They will also be looking for the employer to have followed a fair procedure as outlined above. In particular that the employee was given appropriate warning of dismissal and giving them the opportunity to improve their attendance.
If the employee decides to dismiss, they should invite the employee to a final meeting. This must be carried out by a manager with appropriate authority to dismiss. The employee is entitled to be accompanied and allowed to make representations.
Any dismissal that comes out of this meeting will be with notice.