The following guide from DavidsonMorris looks at what amounts to potential grounds for dismissal in this context, from conduct to capability issues, and the legal risks of getting this wrong. They also provide some best practice tips for employers on how to effectively deal with sickness absence in the workplace.
Can I dismiss an employee who is off sick in the short-term?
Taking sick leave does not, of itself, provide grounds for dismissal. However, there may be cases in which disciplinary action can be taken against an employee because of short-term sickness absence, including a decision to dismiss. This includes where an employee’s absence from work is unauthorised or where an employee is found to be malingering.
Unauthorised absence
An employee is required to provide their employer with a fit note if they’ve been unwell for more than 7 consecutive days, including bank holidays and weekends, and have taken sick leave. This is to medically certify their inability to work. If absent from work for 7 calendar days or less, the employee can instead be asked to self-certify on their return. The employer will usually have a set procedure for self-certification that must be followed.
Any failure by the employee to provide medical evidence of their sickness absence or, where applicable, a procedurally-compliant explanation of their illness or injury, means the employer may be entitled to treat the employee’s absence from work as unauthorised. This can then be dealt with as a potential misconduct matter for which disciplinary action can be taken.
Bogus sickness absence
Pulling a ‘sickie’, or malingering, is where an employee is either fabricating or exaggerating illness or injury, to get time off work. This represents a form of fraudulent behaviour that breaches the implied duty of trust and confidence between the employer and employee. If an employee is suspected of malingering, this constitutes a potential serious misconduct matter for which disciplinary action, including dismissal, may be justified.
There could be a number of scenarios in which an employee is suspected of malingering, including any failure to provide a fit note. However, even where the employee is able to provide a legitimate doctor’s note, there may be evidence that casts doubt on whether they’re genuinely unfit for work, such as being seen out socialising. Alternatively, there may be a clear pattern emerging of persistent and implausible short-term absences for different ailments.
Dismissing an employee on long-term sick leave
If an employee is absent from work on long-term sick leave, or has a high absence record due to recurring health problems, even if genuinely unfit for work, there may be circumstances in which that employee can be dismissed. However, genuine absence from work is not a form of misconduct and this should be dealt with as a capability issue. Dismissal for sickness absence should also only be seen by employers as a measure of last resort.
An employee can be fairly dismissed on grounds of capability if they have a persistent or long-term health condition that makes it impossible for them to do their job. It may also be fair to dismiss an employee for “some other substantial reason”, if their repeated absence is having a harmful impact on the business. However, where the employee’s condition amounts to a disability, the employer is under a duty to make ‘reasonable adjustments’ to help them do their job. A disability is widely defined as a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to do everyday tasks.
Reasonable adjustments could include things like a phased return to work, amended duties, altered hours or workplace adaptations, although what is ‘reasonable’ will be determined by the circumstances. The employer will need to explore all possible options and assess any employee-requests. They will then need to make a decision based on how practical any adjustments are to make, whether there are sufficient resources to fund the adjustments, and whether the adjustment will be effective in overcoming or reducing the disadvantage suffered.
Dismissal & sick leave rules
Even though unauthorised and bogus sickness absence constitute potentially fair reasons for dismissal by reason of misconduct and, equally, long-term or recurring sickness absence can potentially form the basis for a fair dismissal by reason of incapability, the employer must still act reasonably in all the circumstances and follow a fair procedure.
There’s no statutory definition of ‘reasonableness’, but the employer must carry out a full and fair investigation into all the facts and any circumstances surrounding a conduct or capability issue before dismissing an employee. The employer must also hold a reasonable belief of serious misconduct or incapability, with reasonable grounds to support that belief.
Disciplinary procedures
For misconduct matters, the employer must follow a fair disciplinary procedure before making any decision to dismiss. Even in cases of gross misconduct, such as providing a fake sick note, it is not advisable to simply sack the employee on the spot. They must still undertake a full investigation and disciplinary hearing, providing the employee with an opportunity to defend any allegations made against them or put forward any mitigating circumstances, even where the outcome may be summary dismissal, that is dismissal without notice.
As a minimum, a fair disciplinary procedure should involve:
- Carrying out a full investigation into any allegations of misconduct
- Informing the employee of the issues in writing
- Inviting the employee to a disciplinary hearing
- Providing the employee with the right to be accompanied
- Conducting a hearing without unreasonable delay
- Informing the employee of the decision in writing
- Providing the employee with a right of appeal.
If an employee has failed to provide a fit note, or to self-certify, they should be asked to do so before any disciplinary action is taken against them. If necessary, this should be put in writing, notifying the employee of the requirement to provide medical evidence or, where applicable, a written explanation of their sickness absence. They should also be warned of the possibility that disciplinary action could be taken, and if any sick pay could be withheld, if they fail to do so.
Capability procedures
In the context of long-term or recurring ill health, the employer must follow a lawful capability procedure before making any decision to dismiss, treating the employee fairly and without discrimination throughout the process. A fair capability procedure should involve:
- Carrying out a reasonable investigation into the employee’s condition, including obtaining an up-to-date medical report to establish the likely prognosis and whether any improvement might be expected in the short to medium term, both with and without treatment
- Providing the employee with an opportunity to consider any medical evidence, to make representations and to provide their own evidence in rebuttal
- Exploring all possible options, ideally in consultation with the employee, to assist in their return to work, such as flexible working, adapting the workplace or finding other work
- Securing evidence from an occupational health specialist, where needed.
- The employer must give the employee an opportunity to consider and discuss these matters. This may mean waiting for them to be well enough to attend a meeting or provide a written response. The employer must also give the employee reasonable time to recover from their illness, and conclude any course of treatment, before reaching any decision to dismiss.
Unfair dismissal risks for employers
To justify dismissal for unauthorised or bogus sickness absence, there must be clear evidence of serious misconduct. A decision to dismiss must also fall within a range of reasonable responses available to the employer, taking into account any mitigating factors, alternative disciplinary sanctions and previous-decision making. Any failure to follow a fair procedure, or to act reasonably in all the circumstances, could result in a claim for unfair dismissal.
Equally, by summarily dismissing an employee for gross misconduct, ie; without pay or pay in lieu of notice, an employee may have a potential claim for wrongful dismissal if they can show, for example, that summary dismissal was a disproportionate response based on the evidence available to the employer, or the employer failed to follow the correct procedure.
In cases of medical incapacity, the matter becomes even more complex and fraught with legal risk. If the employee cannot do their job because there are no reasonable adjustments that can be made, it may be fair for the employer to dismiss them, even if they’re disabled. However, the onus will be on the employer to show why they were unable to make any adjustments. A decision to dismiss must also again fall within a range of reasonable responses available to the employer, taking into account things like the anticipated length of the employee’s continuing absence, any ongoing treatment and the level of disruption to the business.
If an employer fails to make reasonable adjustments in the workplace, or fails to act fairly, they run the risk of a claim for both unfair dismissal and unlawful disability discrimination.
How to deal with sickness absence
Genuine or not, if you’re faced with a high number of sickness absences, this is likely to have a significant impact on your business, where you simply cannot afford to let excessive absence rates slide. Below we set out a number of best practice tips on how to effectively deal with sickness absence in the workplace, whilst minimising the risk of legal action.
Review your sickness absence policy
By creating a clear framework for reporting, managing and recording sickness absences, this will ensure that sick leave is dealt with fairly and consistently across your business. It will also help to establish what is expected of your employees, including how to report sickness absence, timelines for self-certified absences, the use of fit notes, long-term sickness absence, keeping in contact and sick pay.
Introduce an absence monitoring system
By recording absences and the reasons for them, this can help to identify trends or patterns to determine whether any ongoing issue is one of conduct or capability. Your sickness absence policy should set benchmarks, known as trigger points, for unacceptable levels of short and frequent sickness absence. It should also set out what action will be taken once those triggers have been met.
Conduct back-to-work interviews
By interviewing an employee on their return to work, this will provide you with an opportunity to establish any underlying reasons behind repeated absences and, where applicable, to discuss any reasonable adjustments for disability-related absence. Proactively following up on absences will also signal to your employees that their sick leave has been monitored, specific trends have been recognised, and that disciplinary action may be taken against them for bogus sickness absence.
Follow fair procedures
By having in place fair procedures for dealing with conduct and capability issues arising from sickness absence, and by following these procedures, this will help you to minimise any complaints of unfairness. These procedures can be used to issue employees with written warnings, where appropriate, together with targets to improve attendance levels and timescales in which to achieve them. It will also help you to show that you’ve acted fairly, even if you have no other choice but to dismiss someone who is off sick.
Need assistance?
DavidsonMorris’ HR and employment law specialists work with employers to support with compliant and effective workforce management. We can advise on issues such as sickness absence and how policies and documentation should be used to help manage risks and foster positive working cultures. For expert advice, contact us.
