What steps can employers take when dealing with difficult instances of employee sickness? Michael Ryley reports

From ill-health to domestic emergencies, there are many reasons employees might need time off work. Employers must be equipped to handle absences sensitively and exercise common sense in accommodating genuine need, while robustly addressing unnecessary time off. 

As a first step, comprehensive but flexible policies and procedures that ensure staff understand both their rights and their obligations should be in place. It’s not enough that these policies exist, though – they should also be clearly and regularly communicated by management so that all parties are clear about company expectations and the commercial drivers behind them.   

Disruptive short-term absences

The legal position makes it clear that employers are not expected to put up with unacceptable levels of intermittent sickness absence indefinitely (even if they are disability-related). There are simple ways to tackle such absences from both a legal and practical perspective.

Accurate records must be maintained of employees’ absences and the reasons for them and, ideally, managers should be proactive in addressing sickness absence before it becomes a recurring issue. This might involve allowing an employee to work from home or offering short-term adjustments to their usual duties.

Properly recorded return-to-work interviews should be conducted following an absence to determine any underlying causes and any support management can offer to avoid further occurrences. 

However, as soon as an employee exceeds a clearly defined level of sickness absence, a formal sickness absence management process should be followed, which gives employees a chance of improvement while also providing a fair process for dismissing them if necessary. 

Where sickness absences are contributed to by an underlying disability, management must be mindful of their various obligations under the Equality Act 2010. While this does not mean tolerating unacceptable levels of disability-related absence, businesses must be able to justify applying a formal absence management process. It also means ensuring they have duly considered implementing reasonable adjustments to assist the employee in reducing their sickness absence levels.   

Tackling absences related to disciplinary proceedings

It’s not uncommon for employees undergoing a disciplinary process to be signed off work because of stress or depression. Legally, an employee may be genuinely unfit to perform their normal duties but well enough to participate in a disciplinary process (with any necessary adjustments).

Managers facing this type of employee absence should seek expert occupational health guidance in the first instance. Their course of action will depend on whether the stress or depression results from the employee being involved in the disciplinary process, or something else.

If occupational health advises that it is appropriate and safe to progress the disciplinary process then adjustments to accommodate the employee might be appropriate. Management might offer to conduct the hearing at a neutral location or even at the employee’s home, or allow a friend or family member to accompany them. 

The employee may still feel unable to attend a disciplinary interview despite the advice of occupational health. In this case, employers can still proceed while making it as fair as possible, such as by offering for the employee to attend remotely via video conferencing, and allowing them and their representative timely opportunity to submit written evidence to be considered at the hearing. 

Domestic crises and dependants

Balancing the interests of the employer with an employee’s need to handle domestic crises relating to dependants can often be a challenge and requires sensitive handling. 

The employee will not have a right to paid time off in these circumstances, so the real question is whether they are entitled to take time off at all.

Employees can take a ‘reasonable amount’ of time off where necessary to deal with crises relating to dependants, such as illness, dealing with the consequences of a death and unexpected events at school. However, determining what is ’reasonable’ and ‘necessary’ in these circumstances presents difficulties. By the very nature of the circumstances, employees will inevitably exercise these rights without notice. 

Employers should be cautious in responding. Employees who are refused leave can complain to an employment tribunal and any dismissal of an employee based on their assertion of these rights will be automatically found to be unfair. 

Michael Ryley is a partner in the employment, pensions and immigration team at Weightmans