If you have an employee with a problematic short-term absence record you may need to consider formal action to address it.
Before formal action
Before you take any formal action to address a problem with short term sickness absence rates you should ensure you have taken informal steps to find out any underlying causes of the problem, provided appropriate support and made clear to the employee what your expectations are in terms of acceptable attendance.
Which procedure to follow
If you have a formal capability procedure for addressing sickness absence problems, this is the one you should use. Regular short term sickness absence is definitely a factor which makes someone potentially incapable of performing their role, so the capability procedure is relevant. It usually contains a formal procedure which is in line with the rights in a disciplinary procedure, i.e. with a hearing, a right of representation and a right of appeal. Warnings under a capability procedure, as long as they are given in line with these rights, carry the same weight as formal disciplinary warnings.
Before you get to the warning stage you may have a semi-formal absence review stage in your capability procedure, or in any sickness absence procedure in place within your business, so you should follow this first.
If you do not have a formal capability procedure, as many small businesses do not, then you can use your disciplinary procedure instead once any provision in your sickness absence policy has been exhausted. This is not because you are (necessarily) considering the short term absence to be purely or partly a conduct problem, but because if you want to take formal action, as you are entitled to do, the disciplinary procedure is a tool which gives a framework for action and ensures the member of staff is fully protected in terms of their rights to be represented, and to appeal any decisions.
Just as with a standard disciplinary procedure, a written warning given through formal action for short term absence should clearly set out the problem, the required improvement, timescale for review, as well as being clear about how long the warning will remain active on the employee’s record, and about the consequences of failure to improve, i.e. a further formal procedure. The employee needs to be given the right to appeal the warning.
Even where the employee’s absences have all been for reasons of genuine ill-health, it can still be appropriate to issue a formal warning. This is not about blame, but about being clear that the employer cannot support that level of unsatisfactory attendance and is making that formally clear.
If you have taken formal action and have issued a number of warnings for unsatisfactory levels of short term absence, you may be able to dismiss them for capability reasons, even though they are not off long-term sick. Obviously this should be a last resort and after every other method of bringing attendance to satisfactory levels has been fully explored.
You will need to be able to demonstrate that the level of absence was sufficiently poor and that dismissal was a reasonable response in the circumstances.
When the absence is disability-related
If an employee has a short term sickness absence problem but this problem is caused directly or indirectly by a disability, obviously you need to be more cautious. You must not treat an employee less favourably as a result of a disability, and you have a specific obligation to make reasonable adjustments to facilitate their attendance at work.
A disability doesn’t preclude you from dismissing the employee for capability reasons if their level of attendance is genuinely preventing them from performing their role adequately, however you need to be absolutely sure you have explored all possible adjustments fully and exhausted any other method of keeping the individual employed before you consider this.
If you would like further advice on taking formal action to address short term sickness absences, do get in touch.