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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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A company has an acceptable level of absence in 12 months,

Customer Question

A company has an acceptable level of absence in 12 months, 3 separate absences totalling 10 days, after which the employee is placed in a 12 month monitoring period, 8 months into the monitoring period the employee is sent home due to vomiting and has the following day off (7 1/2 hours), the employee is then given a verbal warning for a further 12 months stating they cannot be absent for the next 12 months, 9 months later the employee is absent for 4 days and requested to attend a disciplinary hearing, the employee provides a letter from their doctor stating that the illness was genuine and treatment was given and that it would have been impossible for that employee to work, the letter was disregarded and never looked at and employee told that there was no dispute over illness they were now in the disciplinary process and was issued with first written warning for a further 12 months which will mean the employee has not been able to absent even when genuinely ill from November 2012 until February 2013, the company stay this is there policy, and once verbal warning is given the disciplinary policy is then followed not the absence and sickness policy, can a company dismiss an employee for absence when their policy states that there are acceptable levels in a 12 month period? the first 3 absences were for 10 days and 2 were in 2011 and the 3rd was in October 2012 is this policy legal? if the company has acceptable levels of absence in a 12 month period, how can the policy be disregarded for a possible 3 years due to having a verbal warning and being in the disciplinary process for absences? can a company impose these sanctions that during the disciplinary process an employee can not be absence when sick or face dismissal?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is Ben and it is my pleasure to assist you with your question today. How long has the employee worked there for? Please note I am travelling at the moment so there may be a slight delay in replying until I get to the office latter this morning, thanks
JACUSTOMER-4ul0x5qp- :

The employee has worked there for 14 years.

JACUSTOMER-4ul0x5qp- :

the employee was absent on for one day on 15th May 2013 and received a verbal warning and told no absences for 12 months, then was absent for 4 days in January 2014 and received a written warning for a further 12 months, a doctors letter stating the absence was unavoidable and because it was only 4 days did not require an unfit for work note as the employee was self certified for 7 days, the letter was not looked at and was told that the illness was not in dispute, they were now in the disciplinary process and not in the sickness and absence process for the absences in 2011 and 2012 any further absences may result in further disciplinary action (dismissal)

Ben Jones :

Thanks for your patience. Dismissing an employee due to sickness absence is a potentially fair reason for dismissal 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. But once the limit has been reached the employer can transition to disciplinary action.

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 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 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.

These are the general principles but also the employer will depend on their own policy. What they have done does not immediately appear to be unfair. It is certainly possible for the employee to transition from the sickness policy to the disciplinary policy. For example the sickness policy could allow specific absences for a set period of time but once that limit has been breached, they can then move on to the disciplinary policy and the sickness policy would no longer apply – this is common. Whether the subsequent absences were backed up by a doctor’s note and were genuine does not really matter – an absence is an absence and can be considered by the employer. It is not that difficult to get a doctor’ note for an absence so the fact that this was certified as genuine does not mean it cannot be taken into consideration by the employer.

Nevertheless the employee can challenge this if necessary, for example by appealing any decision taken against them and if dismissal is the final outcome – consider a claim for unfair dismissal in the employment tribunal.

JACUSTOMER-4ul0x5qp- :

Hello Ben, thank you for your reply and I understand what you have said, but would you clarify for me if the sickness policy states that the acceptable levels of absence in a 12 month period are 10 days, 3 absences or 4%, then how can the company then say an employee can not be absent at all in the next 12 months, the sickness policy does not say that during a monitoring period the employee cannot be absent, it says that during a monitoring period further periods of absence will be reviewed, the policy does not state that once you reach a trigger point that the company's acceptable levels during the 12 months monitoring period are disregarded, during the disciplinary hearing regarding the absences the employee was informed that an allegation against them was made and was suspended, the employee got a new manager in 2010 who has bullied and persecuted the employee, a grievance was put in 2010 and again in 2012, and a further grievance was put in 2014, other staff who have had more absences has never been disciplined one staff had 7 absences in 10 months totally 35 days with no protected illness was not disciplined this further allegation the employee suspects the manager is involved in and is being orchestrated to get her dismissed one way or another and feel HR are supporting and condoning the managers actions without investigating or looking for evidence to support the employee. the employee feels that policy was not followed by their manager when the verbal warning was given and has produced evidence to that fact, which was disregarded in the disciplinary hearing but was looked at during the appeal, also the employee stated they were being set up by there manager which had happened several times over the last few years and HR knew about it but supported her actions the employee provided evidence to show allegations in the past were made malicious and staff were dismissed due to the evidence provided and now feels that the manager is using the absences and further allegations to get her dismissed. please help

Ben Jones :

Hi if the policy does not specify anything in particular that does not mean that the employer cannot apply something. The policy gives the employee a specific number of absences before they enter a monitoring period. Just because it does not state that there can be no further absences or that the disciplinary procedure will be invoked that does not mean the employer is prohibited from doing that – it leaves it open to them so it is certainly possible.

Another consideration is consistency – you mention others have gone through similar or even more absences and have not been disciplined so the employer will have to justify why that happened in their cases but this employee is being treated differently.

The issue is that apart from raising a grievance and appealing any formal decision to dismiss, the employee cannot prevent the employer’s actions at this stage – if they wanted to dismiss, they can do so. The key then is whether the dismissal was fair and it is then that her rights will kick in properly and she can consider challenging the employer’s decision in the tribunal.

JACUSTOMER-4ul0x5qp- :

Hello, the timescale for improvements was No absences for a period of 12 months, November 2012 to November 2013, in May 2013 1 days absence resulted in the manager issuing a verbal warning and a further 12 months no absences, in January 2014, 4 days absence resulted in written warning for a further 12 months which will end January 2015, can the company impose sanctions of no absences running from November 2012 continuing till 2015, when the policy states that in a 12 month period acceptable levels are 3 absences of 10 days or 4% this means that if the employee has 1 day off a year for 3 years they will be dismissed, can a manager state that an employee has to work when sick or be dismissed?

Ben Jones :

The policy does not mean that it has to be imposed continuously. What could happen, and I have seen happen many times, is that the policy is in place to deal with usual absences and impose certain limits on employees. So once the policy has been breached and the employee has gone over the limit allowed by that policy, they can then move over to the disciplinary policy and even though the 12 month absence limit would still be in place for general purposes, the employee could be subjected to more strict monitoring and rules because they have already hit the threshold allowed by this policy and could have been moved up to a stricter attendance and performance management – that is possible. Just because the policy says what it says it does not mean the employer is strictly bound by it all the time and they cannot do anything different – they have already applied it, given the employee the chance to stick with it and once they have not, they have then moved over to a disciplinary procedure and are imposing stricter rules, which is possible. They are not dismissing immediately but are issuing further warnings before eventually a dismissal may take place.

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Expert:  Ben Jones replied 3 years ago.
Hello Kathleen, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you