What’s the answer: Contacting absent employees

Annie Hayes

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What’s the answer: Contacting absent employees

By Annie Hayes

Rebecca Hewett gets legal guidance this week from Helen Badger, employment law expert at Browne Jacobson and Nicholas Snowden, senior solicitor at Clarkslegal LLP on the rules governing contact rights for the long-term sick.

The question:
We are currently dealing with an employee who is on long-term sick absence who does not have a permanent address. He has also not given us a phone number or any other way of contacting him.

We have sent all correspondence to him registered post to both the address that we do have and to his GP, some is being collected some is not. He continues to submit medical certificates so is still covered by occupational sick pay. We have asked him to call us or for his number, we have offered him a home visit, a prepaid taxi to pick them up and bring them for a meeting and a meeting away from both work and home but he is unwilling to speak to either his manager or HR.

As they are still covered by a medical certificate but we are unable to find out how to help them back to work I am absolutely stumped as to what to do next.

How much do we have to do before we can look to stop the employee’s pay or end their contract and can we insist that they speak to a manager or HR representative?

Rebecca Hewett

The answers:
Helen Badger, employment law expert, Browne Jacobson

Where an employee is continuing to receive company sick pay, it is likely to be considered unreasonable to dismiss them on the grounds of their incapacity.

The situation may be slightly different if the reason for dismissal is misconduct. The employee’s continued refusal to speak or meet with you and to keep you informed of their situation could amount to misconduct. However, this must be assessed within the context of the reason for their absence. If the employee is off with stress or depression, for example, then it may be legitimate for them to reject requests to meet if this makes their condition worse.

The first port of call in deciding how to handle this matter is to look at the employment contract or handbook, if you have one. Many contracts oblige employees to keep their employer regularly informed of the situation and the likely duration of the absence until their return. Additionally they may be contracted to provide any further information requested by the employer in relation to the absence.

In the case mentioned the employee would be in breach of such contractual provisions and their behaviour would be a matter of misconduct as well as capability. Payment of occupational sick pay is often dependent on the employee complying with these obligations and so you would be entitled to stop payment if the contract confirms this.

Before doing so, I would suggest you write to the employee, using all the means you have been, informing them of their contractual obligations. This should be used to outline the efforts made to meet with the employee to discuss their absence and invite them to explain their lack of contact. You should inform them that this appears unreasonable, and that such a breach of their contract could lead to disciplinary action, including the withdrawal of occupational sick pay.

If you don’t have these provisions in the contract then the situation is slightly less clear. However, depending on the nature of their illness, the lack of co-operation could still be viewed as unreasonable and disciplinary action could be considered. Again, notification of potential disciplinary action should be given to the employee prior to any decision being made.

It is important that you have given the employee every opportunity to meet with you to put forward their version of events and explain the reasons for the lack of contact, to ensure compliance with the Employment Act 2002 (Dispute Resolution) Regulations 2004.

If the employee agrees to a meeting, then you would need to hear their explanation for the lack of contact. It may be appropriate to at least issue a warning at this stage with confirmation that repeated similar behaviour will lead to further disciplinary action and possibly dismissal.

Alternatively, if they fail to attend they should be given a second opportunity. Failure to attend on the second occasion means you have complied with minimum statutory provisions and you can take whatever action you consider to be reasonable in the circumstances. This may include dismissal, on the grounds of misconduct, but you would need to ensure that you have given adequate consideration to their condition and the impact this may have on their willingness to meet with you.

Whenever dealing with a long-term absence problem you need to tread with caution. Whilst you need to be able to manage your business you must also keep in mind the provisions of the Disability Discrimination Act and the requirement for reasonable adjustments to be made for a disabled employee.

Helen can be contacted at: hbadger@brownejacobson.com

Nicholas Snowden, senior solicitor at Clarkslegal LLP

First stop is to look at the employee’s contract of employment. It hopefully requires the employee to regularly speak to a manager personally to update the company on his illness and expected date of return. If this contractual right exists, you can make reference to it when requiring the employee to contact you.

Even if no useful express contractual right exists, it is perfectly reasonable for the company, as this individual’s employer, to be able to communicate with the employee to get an idea of a likely return date or explore ways of helping him back to work. In view of his continued failure to contact you, you could write to him at both his address and his GP’s address and ask him to contact you within a set period, or face disciplinary action which could lead to his dismissal for failing to comply with a reasonable instruction. Give him a reasonable timescale within which to contact you.

This action may prompt him to get in touch. If it does not, you should invite him in writing to a disciplinary meeting. As usual, he should be notified of his right to be accompanied. The letter should explain that the disciplinary meeting is being held to discuss his repeated failure to comply with a reasonable instruction to contact the company and that it is possible that he may be dismissed for gross misconduct.

If he attends the disciplinary meeting, you should give him the opportunity to put his side of the story and decide what would be an appropriate disciplinary sanction, if any. If he fails to attend, you can reschedule the disciplinary meeting once more but making it clear that he risks a decision being made in his absence and if he then fails to attend a second time, send him a letter confirming that, as he has failed on two occasions to attend disciplinary meetings, he is being dismissed for gross misconduct using the modified statutory dismissal procedure (which means a hearing is not required), for failing to comply with a reasonable order to contact the company. The letter should confirm the date of termination and offer him a right of appeal within a reasonable timescale, say 5 working days. Then you just have to wait and see whether he appeals. If he appeals, deal with this fairly and if he has a good reason for his failures, you may have to consider reinstating him. I would recommend taking regular legal advice as you go through this procedure.

Doing as I have suggested is not the most cautious approach, but at least it will bring matters to a head. If you follow the minimum statutory disciplinary procedure the dismissal will not be automatically unfair. If an unfair dismissal claim is nevertheless brought, then it will be a matter of showing that the disciplinary sanction applied was within the band of reasonable responses. This will depend on what mitigation, if any, is provided by the employee.

Nicholas Snowden can be contacted at nsnowden@clarkslegal.com