One of our employees has been off sick 22 times in the past year. Now she claims she has an underlying health condition. How should we handle it? Adam Partington and Esther Smith advise.
The question: Sickness in an SME
We are a very small company (two full time and one part time), and we have a member of staff who has had over 22 days off sick in the last year. All the sick days have been one or two days at a time. The vast majority occur on Mondays and Fridays or before or after a holiday. We have invited her to a meeting to discuss the time off, she has replied stating that she has an ongoing medical condition and that she will be bringing her solicitor.
When we employed her she did not at any stage indicate that she had a serious medical condition. She has since then said that she has a medical condition, but we have never at any time been provided with any evidence. Clearly we have never had a sick note as the days off have never been more than one or two days.
I am unclear what we have to do, as we are such a small company this has had a massive impact, and quite frankly we need an employee who is more reliable. In particular it seems suspicious that she is only ill on Mondays and Fridays, but I don’t know if I can state that in the meeting.
Adam Partington, solicitor, Speechly Bircham
Sickness absence is a challenge to manage, particularly, as in this case, where the employee is referring to an ongoing medical condition which could be a disability meaning your obligations in relation to disability discrimination will be triggered.
Whilst you of course have your suspicions, especially given the days on which the absence falls, it is important that you approach the individual to obtain more details initially before you decide what to do as otherwise it could work against you. Some serious medical conditions can mean you need to take ad hoc days off.
Ascertaining why the employee is absent and, if appropriate, details of the medical condition, should be your first step. An informal meeting with the employee is probably the best way to do this. I suggest you make the meeting a fact-finding exercise, being careful not to appear critical of the employee as she could use this to argue that any process that you may adopt subsequently was pre-judged. As you have concerns about the pattern of absence you could raise these concerns with the employee but I would be very careful doing this if there is an underlying medical condition. Depending on the outcome of the informal meeting and any explanation she provides, you then need to decide how to manage the absence.
I appreciate from what you say that due to the size of your organisation you need to deal with this, but how you do this is critical. You should consider what your next steps will be, which may include obtaining further medical evidence in relation to any ongoing medical condition. It could be useful to refer to the employee’s contract of employment. For example, what are the company’s obligations regarding sick pay? Does the company have a contractual right to request that the individual undergoes a medical assessment? What are the employee’s obligations regarding notifying the company of her absence? These questions may assist you in the approach you adopt and in relation to which you should obtain specific legal advice.
Even though she did not mention her ‘condition’ when she started her employment, she has mentioned it now, so you need to be careful that actions you take do not amount to discrimination if it turns out that she is in fact disabled. If she is alleging workplace stress you should also be careful that your approach to her does not contribute to this.
Regarding the employee’s statement that she will be bringing a solicitor, on the face of it, this would appear to be something you could resist. It seems quite heavy handed that she has requested this. I would explain to the employee it is only an informal meeting and there is no need for her to have legal representation. There are circumstances where an individual may be able to argue that they should be legally represented at a meeting, but case law suggests this would be in situations where the allegations against an individual are so serious that the outcome of a disciplinary decision by an employer could have a negative impact on their future employment prospects. This does not seem to be such a situation.
It is important to bear in mind that there is a legal right to be accompanied to a disciplinary meeting by a union representative or workplace colleague. It may well be that this is not a disciplinary meeting meaning her right to be accompanied is not triggered. If however it is likely to make things easier for you to deal with to allow her to exercise this right in these circumstances it will reflect well on you to have done so. I would however make clear if you do this that the initial meeting is not a disciplinary meeting.
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Esther Smith, partner, Thomas Eggar
The first thing to state is that there is no obligation on your part to allow her to be accompanied at the meeting by her solicitor, and I would advise against this. She is entitled to be accompanied at a disciplinary or grievance meeting by a colleague or a trade union representative, but this meeting does not appear to be a formal disciplinary.
There is nothing to stop you disciplining her for her excessive level of absence, and given the size of the company the increased impact of her absence can be a relevant factor. If she wishes to use the fact that she has a medical condition (presumably one that she is trying to argue is covered by the Disability Discrimination Act (DDA) 1995) she should be prepared to evidence this and if she does not, and is not agreeable to you contacting her doctor for confirmation, then I think it is reasonable for you to assume that she does not suffer from such a condition.
Even if she does have a condition that protects her under the DDA, this does not mean you cannot take action to discipline her for her level of absence, although you will have to be slightly cautious and consider whether you should be more lenient with her given her condition, or indeed whether there are any reasonable adjustments that can be made to facilitate her attendance at work.
The pattern of her absences is certainly something that can be brought up at the meeting, and any subsequent disciplinary process. She should able to provide an explanation for the pattern, if there is one. If she cannot then you can of course take the pattern into account in determining how acceptable you feel her attendance level is.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar