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Ask the expert: Misconduct or not?


Ask the expertAn employee is constantly off sick and refuses to supply a medical certificate or sick note from his doctor. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on whether it is grounds for misconduct.

The question:

We have an employee who has been with the company for nearly four years, but he is causing us a problem. Since the 1 July, he has only worked 11 days for us and keeps having time off sick; at the moment he is still off and has informed us that he will not be in for the rest of the month. He has failed to produce a sick note, although we have written to him asking for a medical report from his doctor so that we know where we stand and also how long his doctor thinks he will be off work. The reply we got was that he will not give permission for a medical report from his doctor and refuses to give us a sick note from his doctor.

All we have is his word that he is actually sick, so as far as the company is concerned he is now on unpaid unauthorised leave. I am also not going to pay him any sick pay but will inform him in writing of this. Can you tell me if this is grounds for misconduct as this is now affecting the business?

Legal advice:

Esther Smith, partner, Thomas Eggar

This certainly is ground for misconduct and disciplinary action. If an employee is unfit for work due to sickness then they have an obligation to inform their employer of the reasons for this, and if their absence exceeds a week then they should certify their absence by way of a doctor’s certificate. Without such a certificate, their absence is unauthorised, even if they are verbally telling the company that they are sick, and you cannot process payments of statutory sick pay.

Therefore I have no issue with you treating this employee’s absence and failure to provide sickness certificates as a misconduct issue under your disciplinary procedure.

The failure to agree to a medical examination may be a further disciplinary issue, in terms of failure to comply with the terms of his contract (if there is a contractual right for you to request that he attends such an appointment) or for failure to carry out a reasonable management instruction.

You may therefore add this to the misconduct charge against him or more likely it will come into play if you commence capability proceedings against him to consider termination on the grounds of his ongoing incapability for work. If he does not provide you with information and does not enable you to get an up-to-date medical report, you obviously cannot take account of these things when considering a potential dismissal, which may not be in his favour.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner, Mills & Reeve

This employee is putting himself at considerable risk of dismissal. I think that too many employers get unnecessarily obsessed with the label they put on the reason for dismissal. The trick is to ask yourself, ‘what is the reason we are going to dismiss this person?’ Don’t think about the technical label (conduct, capability etc). If you have a performance issue then follow a reasonable performance process. If your employee is behaving badly then follow your disciplinary procedure.

Here I would say that your employee is behaving in a way that could seriously damage or even destroy the essential bond of trust and confidence. That is sufficient to warrant a dismissal. Technically this would be a dismissal either for ‘some other substantial reason’ or it may be ‘conduct’.

It is okay to follow a disciplinary process. The trick is in how you frame the allegations; what you say the problem is. In this case, the employee is off on unauthorised leave, has refused to provide sick notes and has refused to comply with his implied duty to co-operate with you in managing sickness. There may be other similar issues that you can use in taking this employee to task.

Martin Brewer can be contacted at . For further information, please visit Mills & Reeve.

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