Constant Sickness

Ian Walford
Member - 24 posts

Have you any formal disciplinary procedures in place? If so then they will tell you how to deal with the problem. If not then you've got grounds to start misconduct procedings for regular short term sickness or possibly competance if they are that unreliable.

Jenny Piggott - Workplace Law Network
Online advisor - 5 posts

Lisa,

You cannot count absence that you have reclassed as holiday.

You do not indicate whether you know if there is an underlying reason for the sick leave. I would advise that you ask the employee to sign a consent form to allow you to get medical advice as to the employee's problems, how this relates to work, and whether any adjustments should be made. You are able to dismiss an employee for capability reasons (ill health) but you need to be careful about dismissing without obtaining medical advice as the employee could come under the DDA.

GLENN RAYBONE
Member - 21 posts

Lisa

I echo Jenny's comment. Refer them to OH to ascertain the medical position. It may be they have a genuine health problem (was anything mentioned at Pre-employment screening?) which needs support, they may come under DDA or they may just be a lead swinger, but without medical information there's no way of knowing.

Regards

Martin Brewer - Mills & Reeve
Online advisor - 92 posts

Lisa, no disrespect intended to Ian or Jenny but there's a danger here of mixed messages.
You need to consider what is the real reason to dismiss? You may only know that after investigation. There are two realistic possibilities.
First, if the dismissal is for past and potential future 'sickness absence' (so accepting that there is a genuine pattern of sickness which for operational reasons the organisation can no longer stand) you will need to investigate the diagnosis and prognosis so must get some up to date medical evidence (this, technically would be a dismissal for 'some other substantial reason' but you don't need to worry about the legal label). My view is that this is really only useful in either long term sickness absence cases or after a long period of persistent short term absence. Do not seek medical evidence from a GP-it will be practically useless. Get an independant medical report. The employee only needs to consent to the physical examination in that you can't force someone to undergo a medical examination. However, if you have good reason to ask and the employee refuses to co-operate the employee will be guilty of a breach of two implied contractual terms-to co-operate with your legitimate processes and refusing to obey a lawful and reasonable instruction. This may enable you to dismiss the employee alone but you do need to lay the groundwork carefully so take specific advice if you are going down this route.
Second, if you think the employee is not really ill, just taking time off and saying it's sickness, this is a conduct issue and you should follow your disciplinary process and again if you are challenging the genuineness of the sickness medical evidence should be sought (this would be a 'conduct' dismissal). GP notes may be sufficient for this because in my experience they are unlikely to disclose any significant medical problem (because if there was one the employee would already have been referred to a specialist). The same implied obligations apply as set out above.
If you do get evidence which discloses the possibility that the employee is disabled under the DDA then you do need to consider 'reasonable adjustments' and you should seek further advice about that.