1. Can employer terminate employment for sick absence?

While occasional sickness absence is normal, you may have noticed that a particular employee seems to be sick far more than you’d expect of your average person. In these situations, you should refer to your sickness absence policy, which 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.

Your sickness absence policy should also establish what actions will be taken once those triggers have been met. In the normal course of events, a poor attendance record will result in the issue of a first written warning. That warning will state that unless attendance improves further action could be taken which could result in a final written warning. Absence would then be monitored moving forward and if there was no improvement a final written warning would be issued. That warning would state the further improvements required in attendance and if they were met a fair dismissal would be possible at that point.

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

In addition to persistent short-term absence, it is possible to dismiss someone who has been off long term on grounds of medical capability. How long that period of absence is will depend on the facts of each case. However, medical evidence will be key here to establish whether or not the employee is disabled, whether any adjustments can be made for their condition and when a return to work may be possible. Only once that information has been received and assessed is a fair dismissal a possibility.

2. How long is long term sickness absence?

There is no hard and fast rule about this. Each case will turn on its facts considering, in particular, the nature of the employee’s condition, whether it amounts to a disability and how long it is likely to last for. Medical evidence will always be key in answering these questions and when considering how to deal with people off on long-term sick.

Get employers sickness absence advice from an employment law specialist.

3. How can sickness absence be monitored?

Monitoring and recording employees’ absences and the reason for it can 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 employees who are taking frequent short-term absences have challenging deadlines and intense workloads. 

Spotting these trends will point you in the right direction and enable you to take the right course of action to rectify the problem. The best way to monitor sickness absence is by holding return to work meetings once the employee is back at work. This will allow you to ask why the employee was off, consider any adjustments to prevent future absence, and spot patterns in behaviour. 

In addition, it may help to use HR software. This will enable you to log and monitor absences easily through one centralised function, as well as run reports when necessary.

4. Is sickness an unauthorised absence?

Unauthorised absences are absences that employees do not have a contractual right or the employer’s permission to take. While staff should stay at home if they are sick, it is reasonable to expect employees to notify their employer at their earliest convenience if they will not be able to attend work. This will typically be laid out within the employer’s sickness absence policy.

In this way, while an employee is within their rights not to work when they are ill, if they fail to inform their employer in the way outlined in the policy, this may qualify as an unauthorised absence and may lead to disciplinary action.

5. Can employers ask about sickness absence?

As a general principle, it is not permissible for an employer to ask a job applicant any questions about their health or disability until they have been offered a job. It is also not advisable to ask someone how many sick days they took in their last role. In very specific circumstances, you can ask before offer stage.

However, it is permissible and advisable to hold return to work meetings with employees after they return from sickness absence for the reasons highlighted above. Whilst there is nothing to force an employee to give detailed reasons as to why they were off, it is in the best interests of both parties that there is a degree of honesty. If the employee has an underlying condition affecting absence, it is advisable to tell their employer about it. That will allow them to make any reasonable adjustments to accommodate it.

Director of Legal Services

James Tamm

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