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7-step guide | How to fairly dismiss an employee who pulls frequent sickies
Managing an employee who frequently takes sick days can pose a challenge for employers, but it’s essential to address the issue fairly and in compliance with the law. In this blog, we’ll explore how to fairly dismiss an employee who appears to be taking too many sick days, discuss UK employment legislation surrounding dismissal, and provide insights on ensuring a lawful and equitable process.
Occasional sickness is a normal and accepted part of life, and all employers will inevitably have to manage sickness absence at some time or another.
But you might have experienced a situation where an employee seems to be sick far more than you would expect of your average person. In these cases, you may have reason to suspect that their illness isn’t genuine, and be unsure what to do next.
Genuine or not, if you’re battling a high number of short-term absences, you may be feeling the effects: increased stress on other members of staff, decreased efficiency and productivity, and the need to find replacement staff, reorganise the workflow and possibly train another employee to take over the absent employee’s role.
Left unchecked, these issues can quickly spiral out of control, destabilising your workforce and putting your business under increased financial pressure. As such, employers can’t afford to simply let excessive absence rates slide.
With summer just around the corner, businesses can expect higher levels of both planned and unplanned absences, but it’s the latter that could tip the balance from reduced but manageable staffing levels to chaos and disruption.
It’s therefore important that employers and managers understand the process to follow with employees who are taking too many sick days, and when dismissal for sickness absence may be warranted, in order to prevent unnecessary disruption in the months ahead.
Here are seven key steps.
1. Review your sickness absence policy
When it comes to employees taking too many sick days, prevention is better than cure.
Creating a sickness absence policy is a fundamental first step in reducing sickness absence rates. By providing a clear framework for reporting, managing and recording sickness absences, your policy will serve to:
- Ensure that absence is managed in a fair, consistent and effective way
- Maintain operational and service levels
- Establish what is expected of your employees
Importantly, setting out your expectations will allow genuinely sick employees to know they will be supported during their absence, and will make malingers aware that you can – and will – take disciplinary action.
Your sickness absence policy should set benchmarks, known as trigger points, for unacceptable levels of short and frequent sickness absence. These should be reasonable, and using the Bradford Factor formula will help you to determine when short-term absence levels have become excessive.
It should also establish what actions will be taken once those triggers have been met. This will help you and your managers to understand what steps to take when a member of your team is off sick.
2. Introduce a monitoring system
Monitoring and recording each absence and the reason for it can be prove useful in uncovering trends or patterns. For example, you may notice that an employee’s absences coincide with certain events, or that certain individuals seem to follow a particular pattern of taking Fridays and Mondays off sick.
Equally, you may notice that employees who carry out particular tasks are often absent for similar reasons, for example back pain, or that many of the employees who are taking frequent short-term absences have challenging deadlines and intense workloads.
Spotting trends will point you in the right direction and enable you to identify ways to rectify the problem. Our PeopleNest software gives employers better visibility and empowers them to take action by making it easy to record, analyse and report on employee absences.
3. Conduct return to work interviews
Holding return to work interviews will allow you to probe into the reasons behind absences and is an effective way to deter sickies.
Proactively following up on absences will signal to employees that their absences have been monitored, that their manager is recognising specific trends, and that disciplinary action may be taken against them if absences are found to be illegitimate.
Return to work interviews provide an opportunity to:
- Explore whether the absence was due to illness
- If it was, find out whether the employee is fully recovered or whether this is part of an ongoing condition
- Consider whether any reasonable adjustments can be made to their role to help improve their attendance.
Depending on what is discussed in the return to work interview, it may be possible to identify simple solutions to reduce persistent short-term absences.
However, it’s also important to assess whether there are any signs of underlying medical conditions, whether the employee is suffering from a work-related illness, or whether they have a long-term health issue which may fall under the scope of disability as defined under the Equality Act 2010.
4. Consider whether formal action is required
In some cases, it may be necessary to take formal action in relation to sickness absence. This would be warranted if:
- The employee has reached the trigger points set out in your sickness absence policy; and/or
- You discover that the employee’s absence is not genuine.
Be careful if making allegations against an employee without clear evidence. If you’re too quick to jump to conclusions, the employee may have grounds to suggest that such allegations amount to a breach of trust and confidence. Subsequently, if they have been employed for more than two years, they could claim constructive dismissal.
However, an employee calling in sick and then posting pictures of themselves on Facebook at a garden party, wedding or sporting event is a whole other matter and should be dealt with as a disciplinary issue. The sanctions imposed will be determined by the facts but could potentially include dismissal without notice.
5. Invite the employee to a meeting
Once you’ve decided that formal action is required, you should invite the employee to a meeting with their line manager to discuss their attendance. The employee has the right to be accompanied by a colleague or trade union representative.
This is an opportunity for the employee to explain their absences. At their meeting, the line manager should review your sickness absence policy, the employee’s attendance record and, if appropriate, any medical evidence, which can be obtained from either the employee’s doctor or an Occupational Health adviser.
Depending on this medical evidence and what the meeting has revealed, you may decide to issue a warning. You must clearly explain to the employee what level of attendance is expected and set clear improvement targets and timescales in which to achieve them. You should also ensure that the employee understands what the consequences are for failing to improve their attendance levels.
Remember, if there are any reasons to believe that the reason behind the absence is an underlying health condition, the matter should be dealt in line with your long-term absence procedure.
In any case, seeking employment law advice before taking action is highly recommended, as this will help you to avoid potential legal pitfalls and resolve matters quickly.
6. Revisit the situation
It’s important to review the employee’s attendance to see if there has been improvement. The date of the next review will depend on the circumstances of the individual case but may be anywhere from one to 12 months.
If the employee’s attendance hasn’t improve as required, a second meeting may be called. This should be carried out by a line manager and the employee has the right to be accompanied.
The line manager may decide to either:
- Extend the review period; or
- Issue a final warning requiring the employee to improve their attendance and setting clear targets over a specified period.
7. Dismiss the employee
You may have reached the point where you consider that dismissal is the only avenue left for the level of sickness that your employee has exhibited.
However, when considering dismissal for sickness absence, it’s important to be mindful of the elements an Employment Tribunal will consider when determining the decision was fair:
Was there a fair reason to dismiss?
It may be potentially fair to dismiss an employee on the basis of their conduct. This would apply in cases where an employee is dishonest and tells you they are sick when they are not.
Likewise, it may be fair to dismiss an employee on the ground of capability, if their persistent absences negatively affect their ability to fulfil their work obligations.
It may also be fair to dismiss for some other substantial reason, if their absence is having a harmful impact on the business.
Did you act reasonably in the circumstances?
An Employment Tribunal will also look at whether you have considered all the circumstances of the individual case. In doing so, it may take into account the following to determine whether the employer acted reasonably:
- The nature of the illness (if applicable)
- The likelihood of the employee’s attendance record improving in the future
- The duration and frequency of the absences
- The periods of attendance between the absences
- The impact these absences are having on the rest of the team.
Did you follow a fair procedure?
Importantly, an Employment Tribunal will seek to determine whether you took all appropriate steps, as outlined above. Of particular importance will be whether the employee was given appropriate warning of dismissal for sickness absence and given sufficient opportunity to improve their attendance.
If, after considering these factors, you make the decision to dismiss the employee, you should invite them to a final meeting. This must be carried out by a manager with appropriate authority to dismiss, and the employee is entitled to be accompanied and allowed to make representations.
Any dismissal that comes out of this meeting must be given be with notice.
Be warned that applying your standard sickness management triggers to disability-related absences could land you in trouble. You must think about what reasonable adjustments could be made in the workplace to help the employee improve their attendance.
Be aware that a different approach may be required if the absences are due to mental health / stress issues or pregnancy.
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Speak to a specialist
According to a 2020 study, sickness absence is estimated to cost businesses in the UK around £568 per employee per year. It’s no wonder, then, that employers are keen to take action to prevent employees taking too many sick days in order to preserve their bottom line.
However, if you’re considering dismissal for sickness absence, it’s always safest to seek advice first to avoid falling foul of employment law.
Through unlimited professional advice, support and absence management software, WorkNest can help you to:
- Effectively monitor, reduce and deal with repeated short-term absence
- Ensure you have robust policies and procedures in place to minimise disruption to your daily operations
- Make smart, commercial, legal decisions.
To find out how we can help you to manage all kinds of absences confidently and compliantly, call 0345 226 8393.
First, obtain more information about their condition(s). Set up a private meeting to discuss their attendance record, the history and severity of their condition(s), and whether they are currently receiving any medical support outside of work. It may be appropriate to ask for their consent to write to their GP for further information or, alternatively, ask if they would be happy to see an Occupational Health (OH) practitioner.
While absence management may appear a relatively straightforward exercise, it’s important to follow the correct process, and quickly, as getting it wrong or letting issues linger can greatly impact your bottom line. Whether you’re bogged down in these low-level issues or facing a particularly tricky situation, WorkNest can help you deal with bogus absences, long-standing conditions that may be disability-related, and everything in between.
