The Question
We have an employee who works in an independent school nursery, employed since 2005. Extra responsibilities were taken on in 2009, and they are responsible for four staff.
This year she has taken 40 days absence, some of it medically certified, some self-certified. During her last absence, her manager phoned to enquire about her health as a relative had notified us of her absence.
An informal meeting was held to discuss the absence, which the employer deemed excessive, and she was allowed to have a companion at the meeting. The employee was most unreasonable, said she didn’t feel it was excessive, didn’t appreciate being contacted at home when the doctor had signed her off. She became rude and aggressive then demanded to go home as she couldn’t cope and kept saying she was ill.
We let her go home, but then she didn’t turn up at work for the next two days, then sent another sick note for another two weeks. We have asked her GP for a medical report, but do we just go down a capability route? Or can we discipline her for her excessive absence?
There is an explicit term in the contract of employment that states anyone having 20 days or more in a period of 12 months can be dismissed.
Legal Advice
Adam Partington, a solicitor at Speechly Bircham LLP
Operating a fair capability procedure before dismissing or disciplining an employee for sickness absence can be challenging. Since your informal meeting with the employee, you indicate that there has been no improvement in her attendance. It would be useful to know what details the employee has given you regarding her illness?
Given that the employee has indicated that illness is a reason for her absence, it is sensible that you are finding out more about the illness before taking any action. The pattern of absences may also be relevant, for example, should they tend to be on Fridays or Mondays either side of a weekend.
You will also need to establish whether or not the employee is suffering from a disability within the meaning of the Equality Act as that will trigger obligations on you such as whether or not there are ‘reasonable adjustments’ that you should be making. Whenever obtaining a medical report, an employer should make sure that it complies with the Access to Medical Reports Act 1988.
Once you are in possession of the medical report, it may be appropriate to meet with the employee to discuss it before taking any action on the basis of its recommendations. It may be necessary to hold more than one meeting with the employee to allow a full exchange of information and views concerning the illness, and a full evaluation of the medical evidence.
Such meetings would most likely form part of a capability procedure. A starting point would be to follow an up-to-date capability procedure, if you have one. Guidance is also provided in Appendix 4 of ‘The New ACAS Guide – Discipline and Grievances’.
If the GP’s report does not provide sufficient clarity, you may want to obtain a medical report from an independent specialist (again complying with the Access to Medical Reports Act 1988 in doing so).
Disciplining or dismissing for capability can be difficult to justify to tribunals, particularly where an employee has been ill and, even more so, if there is any suggestion that they may be disabled under the Equality Act 2010.
This means you should satisfy yourself that you have adopted a fair procedure. Simply relying on the contractual provision that you refer to above to dismiss will not be sufficient. If it turns out that there is no underlying health issue, then it may be appropriate to start a disciplinary procedure, although you should take advice before doing so.
Adam Partington can be contacted at Adam.Partington@speechlys.com. For further information, please visit www.speechlys.com.
Esther Smith, a partner at Thomas Eggar
The first thing to say is that you should not rely on your contractual provision in dismissing this lady simply due to the number of days’ absence she has had. This would potentially be an unfair dismissal, even if you have the contractual provision as, in order to dismiss fairly for capability, there are procedures and processes to be adhered to.
You have two choices here. You could discipline her for poor attendance, however genuine the reasons for the absence may be. Alternatively, if the employee remains off work longer term (she has, I think, only been signed off for a relatively short continuous period at present), you could look at a capability dismissal. This would involve consultation with medical advice to seek a prognosis on her health and her ability to return to work on a sustained basis.
It appears to me from the information provided that this is a disciplinary issue rather than a capability issue. But, as is commonly the case, addressing short-term persistent absence problems through the disciplinary process can often result in employees getting signed off long-term as an avoidance technique. This then gives you good reason to look at a capability dismissal.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
