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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44396
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I need to know full details around sickness at work,

Customer Question

I need to know full details around sickness at work, specifically "DR's Fit Note" I have a employee of whom has been off previously 6 months at a time. From 5/10/2015 to 5/10/2016 she has had 30 days out of the business due to sickness. I need to know everything about the fit note and what I can do in terms of disciplinary action as she always has a fit note. The business feels she is untouchable what is the truth around how I can move forward formally?
Submitted: 21 days ago.
Category: Employment Law
Expert:  Ben Jones replied 21 days ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long has she worked there for and what is the reason for her absence?

Customer: replied 21 days ago.
Apologies for my delayed response, Karen started in 2001 November, there is a long list. It is hard to say exactly, Karen has a lot of allergy's to citrus, some cleaning products and so on so forth. I will search her file for more specific details.
Customer: replied 21 days ago.
Karen suffers from; Asthma, citrus allergy, food allergies (as well as oral), powder allergies, latex allergies and Eczema. This form hasn't been dated but has been provided at some point within her employment
Expert:  Ben Jones replied 21 days ago.

A fit note is not a ‘get out of jail free card’ which gives an employee a solid excuse not to attend work. It is there as a guidance than anything else, to allow an employer to deal with absences and manage them efficiently. But it does not mean that if someone has a fit note which says they can stay off work, that they can actually continue doing so indefinitely without any repercussions. An employer is eventually allowed to consider taking other action, such as taking capability proceedings or disciplinary action and even dismissing someone f they are no longer capable of performing their work due to long-term absences.

Some good guidance on the fit notes can be found here:

If you have doubts about the contents of the fit note or its validity, you can ask the employee to be seen by someone neutral like an occupational health specialist, who can provide a second opinion.

As mentioned, you can just consider taking capability proceedings against her or even disciplinary action, even if she always backs up her absences with a fit note.

This is your basic legal position. I have more detailed advice for you in terms of the procedure you must follow if you are to take this further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44396
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 21 days ago.
All rated, I know you mentioned above that you can dismiss someone if they are long term sick due to capability but what if it is short term sickness which is continuous throughout the year. As has now passed the 30 day of mark for sickness. Also if we were to take disciplinary action how would that work. Would it need to be on a capability basis or could it be done on a absence basis? I guess my main concern is can we be sued for penalizing someone if they have a sick note? Any information you can provide would be extremely helpful as I want to make sure going forward I am doing everything within legal requirements.
Expert:  Ben Jones replied 21 days ago.

It does not just have to be long term sickness, it could be frequent short term absences as well. You cannot just be sued for penalising someone with a fit note – as mentioned a fit note is not something which allows someone to be absent as and when they wish without facing any repercussions. You still have a business to run and eventually you may take action if needed to deal with absences, even if they are backed up by a fit note.

Disciplining or dismissing an employee due to sickness absence is a potentially fair reason under the Employment Rights Act 1996 as it would amount to a capability or even a misconduct issue.

However, to justify it as being fair the employer needs to follow a fair procedure and act reasonably. First and foremost the employer needs to comply with any workplace sickness absence procedures and policies. For example these could list the number or duration of absences before formal action is taken.

In any event, when considering the fairness of the employer's actions, a tribunal would usually look at the following factors:

· Did the employer investigate the nature, extent and likely duration of any illness and consult the employee in the process

· If absences are short-term and intermittent, investigating whether there is any underlying cause (medical or otherwise). If necessary, follow a capability or disciplinary procedure instead, offering practical guidance and assistance, setting timescales for improvement, and giving formal warnings where appropriate. Only continuous absences should threaten dismissal.

· Before deciding to dismiss, consider surrounding circumstances, age and length of service of employee together with action taken in respect of similar situations in the past.

· Consider importance of employee and/or the post occupied to the business, the impact their continued absence is having on the business and the difficulty and cost of continuing to deal with their absence.

· Consider whether the employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal.

Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.

It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. This can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled, they need to show they satisfy the legal definition of ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition;
  • Substantial effect – the effect must be more than minor or trivial;
  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

So in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In the first instance it should be dealt with by issuing warnings for absence and setting timescales for improvement and proceeding with further action only if these are not complied with.

Customer: replied 21 days ago.
Great thank you, ***** ***** we find out that her condition is a disability or not.Is it a case of if she has suffered with allergy's which affect her day to day for over 12 months we should be looking at this as a disability? If that is the case where do we stand with absence if it is classified a disability.Repeat question apologies: Can we take disciplinary action on absence regardless of the sick note or should it be on capability. Also as part of a return to work interview can we give a formal warning and use capabilities then or should they be kept separate?My colleague has said we may get in trouble if we have a formal warning and discussion of capabilities within a return to work meeting - that doesn't sound right to me but thought I would check?In terms of occupational health do we need to have consent from the employee?At the present we have a very generous sickness policy which includes 7 weeks of full pay 6 weeks half pay and then SSP. We have sent our first aid officers on a specific epi pen course to ensure they feel comfortable in administering it if possible. Staff are only allowed to eat citrus fruits in the canteen area so that it is not around Karen and have changed all cleaning products, paints, carpet cleaners hand wash everything you can think of. So I feel we have made adjustments for Karen she has someone in her room at all times encase she needs her epipen. Next steps I feel would be occupational health which I wanted to discuss at her return to work. But wanted to clarify if it is illegal or bad practice to give a formal warning or discuss capability in a return to work?Sorry waffling a bit there but as its a sensitive subject I just want to be fully legal
Expert:  Ben Jones replied 21 days ago.

if it is a disability will depend on whether it meets the criteria I set out above, so if her condition meets all the elements then it can be a disability. If it is then you should be looking at making reasonable adjustments first before considering taking any action and only if such adjustments are not possible or do not help can you proceed.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:

  • making adjustments to work premises;
  • allocating some of the employee’s duties to others;
  • transferring the employee to fill an existing suitable vacancy;
  • altering the employee’s hours of work;
  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

I would say here it may be more appropriate to use disciplinary for continued absences as she can still do her job just that she is never in to do it. Do not issue warnings at a return to work meeting, keep it as a separate meeting. You do need to get their consent to send them to OH but if they refuse then say you will have to proceed based on the info you have which may not be enough so it is in their interest to attend

Customer: replied 21 days ago.
okay sorry to ask again but can we give formal warnings/ disciplinary actions for absence?
Expert:  Ben Jones replied 21 days ago.

yes you can

Customer: replied 21 days ago.
Fantastic! You have been great thank you
Expert:  Ben Jones replied 21 days ago.

you are welcome, all the best

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