September 29, 2016

Sick of sick days? Get to grips with absence

However, an employer has duties both in common law and under statute to look after an employee’s health and wellbeing. It is therefore vital that employers recognise the different types of sickness absence and deal appropriately with each situation to avoid a potential claim for unfair dismissal or discrimination.


Have you ever had suspicions that one of your employees is pretending to be ill. They’re off sick every Monday? You think they’re treating their sickness absence as additional holiday days? Despite your reservations, these concerns should be properly investigated so that the underlying reason for their absence is established. If there is evidence an employee is not genuinely sick, or they’re deliberately exaggerating the extent of their incapacity, this should be dealt with as a case of misconduct in the normal way in accordance with the Acas Code of Practice. Crucially - it’s not a capability issue and this is something that trips up a lot of employers. Potentially this could give rise to an unfair dismissal claim.

Short term – repeat absences

Short term absences occur for a variety of reasons and employers should consider the benefits of introducing measures across the workforce in order to deal with such absences consistently. Consider return to work interviews to facilitate conversations with your employees about the reasons for their repeat absences. This will help you to establish whether there is a capability or disciplinary issue.

Long term – underlying medical condition, disability related

As you will have seen there is a pattern to investigating sickness absence. Always try to establish the reason for an employee’s absence One of the real problems for employers is the difficulty in identifying whether the employee is “disabled” under the Equality Act 2010. Medical evidence may be required. Employers may need to consider whether reasonable adjustments are needed. Alternatively should they consider offering alternative employment? Beware of wrongly assuming an employee is not disabled and risking a costly discrimination claim.

Learn more about how to deal with sickness absence effectively, our Bath HR Training workshop 'Dealing with sickness' on 11 May will be an opportunity to discuss this, and other related issues. This is the second in a series of 5 workshops which provide training on the lifecycle of the employment relationship.

See our Employment & HR courses here.

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