Where do you stand when it comes to ill-health in the workplace? 
By Adrian Barnes, Barrister, Premier Legal LLP

It is important your business has a policy in place for absenteeism and that your contract of terms and conditions deal with your sickness procedures – a requirement of section 1(4)(d)(ii) of the Employment Rights Act 1996. Let’s be fair. There will be some absences that are necessary, you don’t want the person that soldiers on through a bout of ’flu coming into the office and giving it to everyone else. Yet we all know that there are exaggerated sicknesses and downright untruths.

The tried and tested method of dealing with short-term absences is through the introduction of ‘return to work interviews’ (see absenteeism workshop, page 25). These interviews must be conducted with employees when they return from absence. If done properly they not only reduce absenteeism but also provide a clear picture of the sickness culture of your business.
With all absences you must be aware of the Disability Discrimination Act and be prepared to make allowances or adjustments for anyone who has a disability. You may have team members that are off on long-term sick, perhaps after having surgery or with a ‘stress’ related illness. These people must be treated differently to the staff members who are taking odd days off. One of the main problems with returning after long-term illness is that the person has often lost confidence, or even skills, so put off their return. This is easily dealt with by arranging training days and a phased return, allowing the employee to get back to full speed over a few weeks. If you think there is no chance of your employee returning and you don’t want to keep them on the books you may need to consider dismissing them. The Employment Rights Act lists ‘capability’ as one of the six potentially fair reasons for dismissal, so if your employee is no longer capable of fulfilling the terms of their contract you may be justified in letting them go.

In the first instance you should get a doctors report, but before you do this you must get your employees permission to approach their GP. This is covered under the Access to Medical Reports Act 1988 at section 3. Once you receive the report you can see if the medical practitioner believes the employee will be able to return in the foreseeable future. It is important you consider the Disability Discrimination Acts 1995 and 2005 if you are thinking about dismissing for capability. If a person has been off for a long time they may well fall within the protection of the act and you would be required to consider making adjustments or offering an alternative role.

As with any dismissal you must follow the three-step statutory process as required by Employment Act 2002 (Dispute Resolution) Regulations 2004. This means that if you are considering dismissal you must make the employee aware in writing and invite them to a hearing to discuss the situation, at the hearing they must be allowed to put forward their side of the story and they have the right to be accompanied by a trade union official or a colleague. The employee must also be given the opportunity to appeal any decision.

Adrian Barnes
Barrister, Premier Legal LLP
(www.premier-legal.co.uk)