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What is your employer allowed to do?
Your employer is entitled to manage your sickness absence provided it follows a fair procedure.
What is a fair procedure will depend on a number of factors. These include: whether your absence is made up of a number of short-term intermittent absences or one or more longer periods.
Your employer will also have to take into account its own policies and procedures, for example its absence management policy or procedure , and it may have to consider if you are a ‘disabled person’ within the meaning of the Equality Act 2010.
Your employer will generally manage short intermittent periods of absence differently to the way it manages long-term absences.
Absent management procedures
You should try to find out what from your employer the relevant absence management procedure that applies to your type of employment. A good starting place is your contract of employment or your employer’s employee or staff handbook.
If you cannot find the relevant procedure you should ask your manager or someone from HR for a copy. You will then have more of an idea what might happen next.
If your employer does not have its own absence management procedure it must still follow a fair procedure that is completed over a reasonable period of time.
The exact procedure that an employer should take will vary for each individual case. Your employer will have a wide degree of flexibility but at each stage your employer must act reasonably and be able to justify its decision based on reliable and up to date medical evidence.
In all cases, however, your employer should try to find out more about the nature, extent, likely cause of and duration of your absence(s).
Short-term and intermittent absences
Short-term absence typically involves periods of absence of one or two days at a time. Your employer should investigate the reason for the absences, whether there is any underlying cause (medical or otherwise) and whether further absences are likely.
It is unlikely that your employer will need or want a medical opinion where you have a number of short-term sickness absences, but it is possible. See below for details about medical evidence and your consent.
If after considering your sickness absence record, your employer may conclude that your level of absence is unacceptable. If so you can expect your employer to follow a disciplinary or capability procedure to deal with this concern.
In all cases, you should be invited to a formal meeting to discuss your poor attendance.
During this meeting your employer is likely to want to explore and discuss with you the following points:
- the affect of your absence on your colleagues;
- the affect of your absence on the business;
- whether your level of absence is likely to continue;
- whether there are any changes that could be made to reduce your level of absence;
- whether you have an underlying condition which is causing the short-term absence; and
- whether it is appropriate to give you a formal warning for your unacceptable level of absence.
Formal warnings for short-term absences
Your employer may well issue you with a first formal warning if your sickness absence level is unacceptable. The warning should set out an explanation of what improvement is required.
Your employer may set a maximum limit on the number of days absence within a given period, or limit the number of times you can be absent within a given period, or set a combination of the two.
Your employer may also choose to use a formula such as the ’Bradford Factor’ which takes into account the number of days’ absence but focuses on the number of occurrences of sickness absence.
If your attendance does not improve to a suitable standard your employer may hold one or more further formal meetings with you. Your employer may then issue a warning at the end of each meeting.
Dismissal for short-term absences
If your attendance does not improve your employer may dismiss you. You are likely to receive at least two formal warnings before it would be fair to dismiss you The bottom line, however, is that if you take too many intermittent days off on sick leave there will come a time when your employer can fairly dismiss you.
Long-term ill health absences
The following are the steps that an employer, whether or not it has a separate HR procedure, should normally take when dealing with an employee who is on sick leave arising from a long-term ill health reason.
Your employer has to investigate your sickness absence. The extent and scope of the investigation will vary depending on the length of your absence and the medical reason(s) for it.
If you have been off work sick for a long period of time, usually in excess of four weeks, your employer may wish to manage your sickness absence.
If your absence is long-term your employer will be concerned with how long you absence will last and if and when you are likely to return to your normal duties.
As part of its investigation your employer may well want to request your GP or hospital doctor to provide a medical report about your medical condition, prognoses for recover and time scales.
Your employer may also wish to refer you to its occupational health advisers or ask you be examined by your employer’s nominated doctor.
Your employer will need your permission to approach your GP, doctor or any other appropriate medical practitioner. If you are asked by your employer to give permission it is generally advisable for you to agree and cooperate will such requests.
If you do not agree or cooperate your employer is allowed to make decisions about your future employment based on the information it already has and from its reasonable assumptions about your ill health.
Ideally you want your employer to make decisions on the most up to date and accurate medical information that is available.
Your employer should wish to meet you on one or more occasions. This may be at your place of work, a neutral venue or at your home.
At the meeting your employer should discuss with you:
- whether you are likely to be able to return to work
- the likely date of any return to work
- whether or not you have a disability
- whether you can return to your job and if so what your employer might have to do to assist your return
- if you cannot return to your job, what alternative roles you can do and whether there are any vacancies
- whether there are other options to explore such as early ill health retirement or permanent health
- the logistics and practical points of you returning to work including arranging a phased return.
Hopefully your employer will be able to assist and manage you back to work, even if you have to agree to do a different or modified role.
If after all relevant factors and issues have been fairly explored it proves not possible to accommodate your return to work or if it is no longer reasonable for your employer to wait any longer for you to get better then your employer may dismiss you.
If your attendance at work has not improved to a suitable level or you are unlikely to be able to return to work (of any kind) within a reasonable period of time your employer may wish to dismiss you. It should not do so without meeting you and writing to you in advance to tell you it is considering dismissal. The meeting should review and explore all of the above points to make sure all material factors are taken into consideration by you and your employer.
Your employer should confirm its decision to dismiss you in writing and give you a right to appeal. Where possible, the appeal will be chaired by a more senior manager than the person who dismisses you.
If you have a mental or physical condition which adversely affects your ability to carry out normal activities then you may be a ‘disabled person’ within the meaning of the Equality Act 2010. Your condition would need to have lasted or be likely to last more than a year.
If you are ‘disabled’ your employer must make reasonable adjustments for you at work. (A ‘good’ employer will consider making adjustments anyway). This may include making adjustments to your role such as removing certain actives that you find difficult because of your disability.
If your employer is unable to make adjustments to allow you to continue in your existing role then your employer should look to see whether there are any alternative positions suitable for you. In addition to this, your employer may be required to make adjustments to the premises where you work.
Permanent health insurance
You may have permanent health insurance, as part of your terms of employment; this may provide you with reduced pay during a period of long-term absence due to ill health.
Typically, you will receive a percentage of your normal income during your period of incapacity. There are often terms and conditions that apply to the insurance including regular medical reviews.
Problems can occur if your employer dismisses you and you lose your entitlements under the permanent health insurance. Your employer will have to check carefully the legal position before dismissing in such cases.
Early ill health retirement
Some pension schemes allow members of the scheme to retire early if they are unable to work. Speak to your employer to see if this is an option available to you.
What can you do?
If you think that your employer has not followed a fair procedure or that they did not reach a fair or reasonable decision about your ill health before dismissing you then you may be able to bring a claim of unfair dismissal. You do need to have been an employee with the right qualifying period of service, who was dismissed to bring a claim.
Additionally, if you are ‘disabled’ and your employer has failed to make reasonable adjustments or has dismissed you for a reason related to or in consequence of your disability then you may have a claim for disability discrimination.
For more details about unfair dismissal and who can bring a claim please see our Briefing Note When will your dismissal be unfair?
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