LEGISLATION
The EMPLOYMENT RIGHTS ACT 1996 (ERA 1996) covers this aspect of the law.
It details a number of reasons for fair dismissal –
Capability – the employee’s capability assessed by reference to health, skill, aptitude or any other physical or mental quality.
Qualifications – any academic, technical or professional qualification relevant to the employee’s job.
Conduct, Redundancy, Breach of statutory restriction or some other substantial reason (SOSR).
If any employer can show that the dismissal was for one of the reasons above, to determine whether the dismissal was fair depends on whether the employer acted reasonably in treating it as a sufficient reason for dismissal. This shall be decided in accordance with equity and the substantial merits of the case.
PROCEDURES
An employer needs to ensure that it follows a fair procedure when managing an employee’s sickness absence.
The employer must comply with the requirements of the EQUALITY ACT 2010 where an employee is classed as disabled under the Act.
Fair procedure has been established by case law.
EAST LINDSEY DISTRICT COUNCIL v DAUBNEY (1977) – The EMPLOYMENT APPEAL TRIBUNAL (EAT) found that it was unfair to dismiss an employee where the employer had failed to get a full medical report before dismissal, and had not given the employee the right to discuss the situation. Therefore in the case of continuous long-term absence due to ill-health, employers should normally take sensible steps to consult with their employees and find out the true medical position before dismissing them on the grounds of ill-health.
PERSISTENT SHORT-TERM ABSENCE
Legitimate grounds for dismissal for persistent short-term absence will be based on capability or SOSR. The latter might include a failure to comply with a clear attendance procedure or to meet clearly set out attendance targets.
For an employee to be dismissed correctly for persistent short-term absence, the employer must show that it has followed a fair procedure. It must be able to identify the attendance standards that the employee is expected to meet and show that the employee has failed to meet them. There must have been a consistent and transparent application of the employer’s sickness absence procedure, giving the employee an opportunity to explain absences and to improve on their attendance. There should be warnings of dismissal if attendance does not improve. Where the employee does not produce a medical certificate, the employer should investigate why the absences have taken place. A medical report may be necessary and if the employee has a disability the employer needs to consider all reasonable adjustments and may have to offer suitable alternative employment.
The ACAS GUIDE ‘DISCIPLINE AND GRIEVANCES AT WORK’ provides some guidelines for dealing with persistent short-term absences:-
1. An employee may be entitled to some time off under the provisions of the ERA 1996 where his or her absence from work is due to temporary problems with dependents.
2. Where an absence is due to the employee having trouble managing home and work responsibilities, the employee has the right to request flexible working arrangements for example part-time working, and an employer can only reject this request if there is a good business reason to do so.
3. Where there is no improvement in the absenteeism, an employer must take account of the employee’s length of service, the chances of an improvement in attendance, performance, the availability of suitable alternative work and the effect of past and future absences, when deciding on the most appropriate action.
LONG-TERM ABSENCE
Long-term absence is more likely than short term absence to require further medical investigation. A medical report will allow the employer to fully understand the employee’s health condition, and to assess when the employee is likely to return to work and whether the employee has a disability. The employer should consult with the employee and consider whether any adjustments need to be made to help the employee return to work as well as determining whether there may be suitable alternative employment. The decision to dismiss an employee must be within the range of reasonable responses of a reasonable employer taking account of the likelihood of a return to work and the impact of the employee’s absence on the business.
It is usually unfair to dismiss an employee for long-term ill-health before any entitlement to contractual sick pay has expired. In addition where an employee is receiving or is likely to receive benefits under a permanent health insurance scheme, it would normally be considered unfair to dismiss an employee. In this case damages for wrongful dismissal could be very significant.
BS v DUNDEE CITY COUNCIL (2014) sets out what the employer needs to consider in cases of long-term health absence. In deciding how long an employer needs to wait before dismissal it must consider the following:-
1. The cost and availability of temporary cover.
2. The administrative and occupational health costs which might be incurred by the employer.
3. The size and resources of the employer.
4. The employer must determine the medical condition of the employee.
Set against these is the ‘unsatisfactory situation’ of having an employee away from work on lengthy sick leave.
WARNER V ARMFIELD RETAIL & LEISURE LTD. (2013)
This case shows that if an employee becomes disabled, his or her’s employer has a duty to make reasonable adjustments to their work situation in order for them to maintain their employment.
FIRST WEST YORKSHIRE V HAIGH (2008)
In this case the EAT found that fairness required that the reasonable employer should take reasonable steps to find out whether an employee is entitled to the benefit of ill-health retirement before dismissing him/her for incapacity.
CONCLUSION
There is a balancing act between having a fair procedure which accounts for the employee’s views, gaining medical evidence, and monitoring the employees reasons for absence against the need for employees to be at work doing the job they are employed to do.
A robust set of procedures is required to avoid the risk of unfair dismissal.