Solicitor Southampton

SOUTHAMPTON EMPLOYMENT LAWYERS GUIDE FOR EMPLOYERS

How should I deal with employee sickness absence ?

There are two distinct issues to consider:

• the employee who has been off work for a long period of time due to ill health or disability
• the employee who takes short term absences on a regular basis.

Short Term Absences

• Check any employment contracts, policies & procedures you have and comply with them
• Act consistently with all employees and document absences
• Consider implementing a sickness absence policy including return to work interviews.
• Review attendance records and reasons for the absences
• Consult with the employee and discreetly and sensitively seek information as to whether there are underlying health or personal issues
• Consider disciplinary action for persistent and/or unexplained absence or failure to comply with your business policies and procedures by employee.
• With repeated absence seek the employee’s co-operation for access to his or her medical records or to liaise with his or her GP and possibly also consider seeking employee’s co-operation for Occupational Health assessment by a Consultant retained by you

Can an employee be dismissed for short term absenteeism?

This is possible, but needs to be very carefully managed, applying the types of procedure described in the question above and also :-

• Providing appropriate warning.  Dismissal should be the last resort and not your first option.
• Procedural requirements are different for dismissal due to poor attendance, (conduct) and sickness, (capability and other substantial reasons).
• the nature, length and effect of the absences
• the employee’s past performance
• Can the decision to dismiss be justified as being fair and reasonable in all the circumstances ?

Long Term Ill Health

Dealing with long term ill health is very different to dealing with short term persistent absenteeism.

What options does the employer have ?

• Keep in touch with the employee.
• If their condition improves consider if they can return to work.
• Consider suitable alternative employment.
• Consider what their medical practitioner says.
• Obtain an opinion from your Occupational Health Consultant/Department.

Can an employee be dismissed for long term absenteeism?

Yes, but only if correct procedure has been adopted and the decision is fair and reasonable.

When considering any dismissal you must ensure that you follow the statutory disciplinary and dismissal procedure and that you follow a fair procedure in all the circumstances.

What steps need to be taken before a dismissal ?

• Consult with the employee
• Find out what the medical position and diagnosis is (although the employee’s co-operation in this respect is needed)
• Consider the employee’s opinion
• Consider the possibility of offering alternative employment

If an employee has any physical or mental impairment which has or is likely to last for a long period of time, and has substantial or long term effects on their ability to carry out their normal day to day activities the employee may be considered disabled for the purpose of DDA.  If so, an employer needs to be particularly careful not to treat that person less favourably than other employees.

Flexible Working for Parents

Parents of children aged under 6 or disabled children aged under 18 have had the right to apply to work flexibly to enable them to care for their child. Employers now have a statutory duty to consider requests of employees seriously but there is no automatic right to work flexibly.

Who can apply?

The right only applies to employees who:-

• have worked continuously for 26 weeks at the date when the request is made
• have or expect to have responsibility for the child’s upbringing
• are or are married to or are the partner of the mother, father, adopter, guardian or foster parent of the child
• have not made another request to work flexibly during the past 12 months
• are making the application in respect of a child who is under six, or if the child is disabled, under 18.

Procedure to be followed

• a request needs to made in writing by the employee.
• within 28 days after the request has been received, the employer needs to meet with the employee to consider the proposal.
• the employee has the right to be accompanied by a co-worker  to the meeting.
• within 14 days after the date of the meeting the employer must write to the employee to either agree a new work pattern and the start date or to provide clear business grounds as to why the application cannot be accepted
• the employee should have a right to appeal in writing to the employer’s decision within 14 days of it being notified to them
• within 14 days of the notice of appeal, a meeting should be held to discuss the appeal
• within 14 days from the appeal meeting, the decision must be notified to the employee in writing
• time limits can be extended in writing by agreement.