7-STEP GUIDE | How to fairly dismiss an employee who pulls frequent sickies

Occasional sickness is a normal part of life, and all employers will inevitably have to manage sickness absence at some time or another.

That said, you may have experienced a situation where an employee seems to be sick far more than you’d expect of your average person. In these cases, you may have reason to suspect that their illness isn’t genuine, and be unsure what to do next.

Genuine or not, if you’re battling a high number of short-term absences, you may be feeling the effects: increased stress on other members of staff, decreased efficiency and productivity, and the need to find replacement staff, reorganise the workflow and possibly train another employee to take over the absent employee’s role.

Left unchecked, these issues can spiral out of control, destabilising your workforce and putting your business under increased financial pressure. As such, employers can’t afford to simply let excessive absence rates slide.

In this article, we explain the proactive steps employers need to take when faced with excessive absences.

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1. Review your sickness absence policy

Creating a sickness absence policy is a fundamental first step in reducing sickness absence rates. By providing a clear framework for reporting, managing and recording sickness absences, your policy will serve to:

  • Ensure that absence is managed in a fair, consistent and effective way;
  • Maintain operational and service levels; and
  • Establish what is expected of your employees.

Importantly, setting out your expectations will allows genuinely sick employees to know they will be supported during their absence and malingerers that you can – and will – take disciplinary action.

Your sickness absence policy should set benchmarks, known as trigger points, for unacceptable levels of short and frequent sickness absence. These should be reasonable, and using the Bradford Factor formula will help you to determine when short-term absence levels have become excessive.

It should also establish what actions will be taken once those triggers have been met. This will help you and your managers to understand what steps to take when a member of your team is off sick.

2. Introduce a monitoring system

Monitoring and recording each absence and the reason for it can be prove useful in uncovering trends or patterns. For example, you may notice that an employee’s absences coincide with certain events, or that certain individuals seem to follow a particular pattern of taking Fridays and Mondays off sick.

Equally, you may notice that employees who carry out particular tasks are often absent for similar reasons, for example back pain, or that many of the employees who are taking frequent short-term absences have challenging deadlines and intense workloads.

Spotting trends will point you in the right direction and enable you to take the right course of action to rectify the problem.

3. Conduct return to work interviews

Holding return to work interviews will allow you to probe into the reasons behind absences and is an effective way to deter sickies. Proactively following up on absences will signal to employees that their absences have been monitored, that their manager is recognising specific trends, and that disciplinary action may be taken against them if absences are found to be illegitimate.

Return to work interviews provide an opportunity to:

  • Explore whether the absence was due to illness;
  • If it was, find out whether the employee is fully recovered or whether this is part of an ongoing condition; and
  • Consider whether any reasonable adjustments can be made to their role to help improve their attendance.

Depending on what is discussed in the return to work interview, it may be possible to identify simple solutions to reduce persistent short-term absences. However, it’s also important to assess whether there are any signs of underlying medical conditions, whether the employee is suffering from a work-related illness, or whether they have a long-term health issue which may fall under the scope of disability as defined under the Equality Act 2010.

4. Is formal action is required?

In some cases, it may be necessary to take formal action in relation to sickness absence. This would be warranted if: 

  • The employee has reached the trigger points set out in your sickness absence policy; and/or
  • You discover that the employee’s absence is not genuine.

Be careful if making allegations against an employee without clear evidence. If you’re too quick to jump to conclusions, the employee may have grounds to suggest that such allegations amount to a breach of trust and confidence. Subsequently, if they have been employed for more than two years, they could claim constructive dismissal.

However, an employee calling in sick and then posting pictures of themselves on Facebook enjoying the sunshine or at an event is a whole other matter and should be dealt with as a disciplinary issue. The sanctions imposed will be determined by the facts but could potentially include dismissal without notice.

5. Invite the employee to a meeting

Once you’ve decided that formal action is required, you should invite the employee to a meeting with their line manager to discuss their attendance. The employee has the right to be accompanied by a colleague or trade union representative.

This is an opportunity for the employee to explain their absences. At their meeting, the line manager should review your sickness absence policy, the employee’s attendance record and, if appropriate, any medical evidence, which can be obtained from either the employee’s doctor or an occupational health adviser.

Depending on this medical evidence and what the meeting has revealed, you may decide to issue a warning. You must clearly explain to the employee what level of attendance is expected and set clear improvement targets and timescales in which to achieve them. You should also ensure that the employee understands what the consequences are for failing to improve their attendance levels.

Remember, if there are any reasons to believe that the reason behind the absence is an underlying health condition, the matter should be dealt in line with your long-term absence procedure.

In any case, seeking employment law advice before taking action would be highly advised as it will help you to avoid potential legal pitfalls and resolve matters quickly.

6. Revisit the situation

It’s important to review the employee’s attendance to see if there has been improvement. The date of the next review will depend on the circumstances of the individual case but may be anywhere from one to 12 months.

If the employee’s attendance hasn’t improve as required, a second meeting may be called. This should be carried out by a line manager and the employee has the right to be accompanied.

The line manager may decide to either:

  • Extend the review period; or
  • Issue a final warning requiring the employee to improve their attendance and setting clear targets over a specified period.

7. Dismiss the employee?

You may have reached the point where you consider that dismissal is the only avenue left for the level of sickness that your employee has exhibited.

However, it’s important to be mindful of the elements  an Employment Tribunal will consider when determining whether a dismissal was fair.

A) Was there a fair reason to dismiss?

  • It may be potentially fair to dismiss an employee on the basis of their conduct. This would apply in cases where an employee is dishonest and tells you they are sick when they are actually fine.
  • Likewise, it may be fair to dismiss an 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.

B) Did you act reasonably in the circumstances?

An Employment Tribunal will also look at whether you have considered all the circumstances of the individual case. In doing so, it may take into account the following to determine whether 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; and
  • The impact these absences are having on the rest of the team.

B) Did you follow a fair procedure?

Importantly, an Employment Tribunal will  seek to determine whether you took all appropriate steps, as outlined above. Of particular importance will be whether the employee was given appropriate warning of dismissal and given sufficient opportunity to improve their attendance.

If, after considering these factors, you make the decision to dismiss the employee, you should invite them to a final meeting. This must be carried out by a manager with appropriate authority to dismiss, and the employee is entitled to be accompanied and allowed to make representations.

Any dismissal that comes out of this meeting must be given be with notice.

Be warned that applying your standard sickness management triggers to disability-related absences could land you in trouble. You must think about what reasonable adjustments could be made in the workplace to help the employee improve their attendance.

Be aware that a different approach may be required if the absences are due to mental health/stress issues or pregnancy.

Need support?

According to a CIPD report, sickness absence is estimated to cost businesses in the UK around £554 per employee per year.

Support from our qualified Employment Law specialists will:

  • Offer practical advice on how to effectively monitor, reduce and deal with repeated short-term absence;
  • Ensure you have robust policies and procedures in place to minimise disruption to your daily operations; and
  • Help you to make smart, commercial, legal decisions.

Receiving the right support is especially important now that the government have announced plans to lower the eligibility threshold for statutory sick pay, which many fear will act as a disincentive to a return to work. 

For expert guidance, call 0345 226 8393.