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taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6430
Experience:  15 years experience of advising on employment law matters
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Can I sack someone due to there terrible sickness record? I

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Can I sack someone due to there terrible sickness record? I own a young, small engineering company of which only employs 5 staff. An employee we have had working for us for just over two years has a terrible sickness record. He has been off over 14 weeks just from the start of this year on two long term sicknesses. In the past two years (excluding the 14 weeks off this year) the employee has averaged 10% sickness absent when the average last year was only 1.8%. The employees absence record is having a huge affect on productivity affecting our customers and we simply cant run a business like this. We were wondering is we could pay him off using this as a cause? or even better just sack him directly? Many Thanks Paul
Hello my name is ***** ***** I am happy to help you today. Do you know the reason for the sickness absence?
Customer: replied 2 years ago.

hi jenny,

over past two years he has had everything from a flu, bad back, infected toe etc etc. Non work related.

Have you informally told him that you are unhappy with his absence levels and has he definitely worked for you for more than 2 years?
Customer: replied 2 years ago.

well hes unfortunately been and still is on long term sick during the 2 year anniversary. It was about 2 weeks ago and he's been off 12 weeks with his current toe infection. We have gave him a verbal warning of his sickness record and a written one so he's well aware of the situation.

Ok well as he has over 2 years service there is the possibility he could claim unfair dismissal in the event that he is dismissed on the grounds of capability. There is also the risk of disability discrimination if he has a long term illness which has a significant impact on his ability to carry out day to day activities (which does not appear to be the case here).
To be absolutely safe I would advise making a request for a medical report to rule out the possiblity of disability.
If this is not a possibility then you can invite him to a meeting to say that any further incidents of absence will result in his dismissal as you cannot support level of absence. If there is a futher occassion you can then hold a disciplinary hearing and dismiss him. You would need to give him the right to be accompanied at the meeting and the right to appeal in order to be procedurally fair.
If you do have a conversation with him to tell him that he will be dismissed if he is absent again you can offer him a 'without prejudice settlement as an alternative to this route. If he accepts it you will need to either get ACAS involved or draw up a formal settlement agreement.
If you have any further questions about this please ask If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 2 years ago.

Since he's already had two warning could I sit him down and sack him as soon as he gets back?

It would be risky unless you have followed correct disciplinary procedures in which he has had the right to be accompanied and he was warned that any further absences could result in dismissal.
If you have done this then you could escalate to a dismissal hearing.
If you have not then he could claim unfair dismissal against you unfortuantely.
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