Short-term sickness absence: case study

Sarah-Marie Williams of Clyde & Co LLP continues a series of articles on short-term sickness absence with a case study that looks at the procedure to follow where there is no satisfactory explanation for the short-term absences, and the employee refuses to allow the employer to obtain further information to help it to establish whether or not there is an underlying medical reason.

Jane Brown, a manager with Safe Insurance Co has noticed that one of her staff, Sally Smith, who has been with the company for over a year, has been taking a lot of short-term sickness absences. Jane asks the HR department to conduct an initial investigation. The investigation reveals a pattern of absence; Sally's absences are frequently on Mondays and Fridays. When the HR department checks Sally's sickness records, it notes that she has given a variety of reasons when self-certifying her absences, including stomach upset, headache, backache and sore throat. Jane thinks that Sally is not genuinely ill when she is absent and believes that the absence is due to a wish to take extended weekends. From its preliminary check through the records, the HR department decides that there is no indication of an underlying health problem. However, as a precaution, it writes a one-line letter to Sally stating that Safe Insurance Co would like her to see the company doctor. Sally refuses to do so, stating that she does not understand the reason for the request and that she is in good health. When she learns this, Jane instructs the HR department to dismiss Sally.

Given Sally's pattern of absence and the fact that she has given a variety of reasons for that absence and is refusing to see the company doctor, can Safe Insurance Co dismiss her at this stage?

No. Assuming that Safe Insurance Co has not already conducted an informal interview with Sally, it should do so now. Although it has written to her to request that she see the company doctor it has not met her to discuss the situation. The fact that Sally's attendance concerns her employer, and the reasons for that concern, should be drawn to her attention during an informal interview. She should be asked for an explanation for the pattern of absence. Safe Insurance Co should ask her again to see the company doctor and explain to her that this is normal company policy, in cases of recurrent short-term absence, to determine whether or not an underlying health problem is the cause of the absence. If Sally is unable to offer a satisfactory explanation for her frequent absences and continues to refuse to see the company doctor, or to allow her employer to obtain a medical report from her own doctor as an alternative, and there is no improvement in her attendance, Safe Insurance Co should take action under its disciplinary procedure.

Safe Insurance Co could also consider taking disciplinary action against Sally for her refusal to follow a management instruction to see the company doctor, or agree to have the matter referred to her own doctor. The employer's position on this point is strengthened if there are contractual terms obliging Sally to see a doctor in the event of her having an unacceptable level of sickness absence.

How should Safe Insurance Co document the situation?

Safe Insurance Co should retain all correspondence with Sally, particularly her refusal to see a doctor. Notes of telephone conversations, messages and meetings should be taken and filed appropriately. Such documentation should be written in a factual, non-judgmental manner as it could be disclosed in subsequent tribunal proceedings. The company must also keep all notes and records confidential and satisfy data protection requirements in accordance with the Data protection - employment practices code (PDF format, 5.54MB) (on the Information Commissioner's Office website).

Given that there is no indication of a genuine health problem and Sally has refused to see a doctor so that Safe Insurance Co can obtain more information, what procedure should it follow to manage Sally's short-term sickness absences?

Safe Insurance Co has a number of options. It could give Sally an informal caution that, if there is no improvement in her attendance levels, the matter will be dealt with under a formal procedure. She should be given a timescale in which to improve. Sometimes the issue of an informal caution is sufficient to bring about an improvement in attendance.

If Safe Insurance Co is considering taking formal disciplinary action against Sally, it must follow a fair and proper procedure. It is unlikely to be in a position to dismiss her at this stage, unless it can show that her absences amount to gross misconduct (perhaps where she has reported absences as sickness but there is clear evidence that she was not ill). If it is considering dismissing Sally, Safe Insurance Co must follow the statutory dismissal and disciplinary procedure if it dismisses prior to the abolition of the dispute resolution procedures on 6 April 2009, or complies with step one or two of the standard procedure or step one of the modified procedure before that date. Dismissals or other disciplinary action after the repeal of the statutory procedures must still be reasonable and the employer should comply with the new Acas code of practice on disciplinary and grievance procedures (PDF format, 57K) (on the Acas website). (See the Disciplinary rules and procedures section of the XpertHR employment law manual for further details on the transitional arrangements for the abolition of the statutory procedures.)

Regardless of whether Safe Insurance Co is considering dismissal or a disciplinary warning it should invite Sally to a formal meeting to discuss the issue. It should give her details of the alleged conduct, namely the number and pattern of her short-term sickness absences (including any documentation) and explain to her that her absences are unacceptable, particularly given her refusal to see a doctor. She should be given sufficient information to ensure that she has a reasonable opportunity to consider her response to the allegations. At the meeting Sally should have the opportunity to respond to the allegations and put her case.

Following the meeting, Safe Insurance Co should notify Sally of the outcome. If she provides a satisfactory explanation for her absences, or agrees to see a doctor, Safe Insurance Co might decide at this stage to take no further action or deal with the matter under its ill health/capability procedure. Assuming no satisfactory explanation is given for the frequent absences it could issue her with a first or final written warning, depending on the seriousness of the problem. She should be notified of her right of appeal. If gross misconduct is found and she is dismissed, the dismissal letter should identify the reason for her dismissal and the effective date of termination.

Does Sally have the right to be accompanied at meetings concerning her sickness absences?

There is a statutory right to be accompanied by a trade union representative or a fellow worker at a formal disciplinary meeting that could result in:

• the issue of a formal warning;
• the taking of some other action, including dismissal; or
• the confirmation of a warning or some other action.

Therefore Safe Insurance Co should give Sally the option of being accompanied, if she wishes, at a meeting that could result in formal disciplinary action being taken against her.

Meetings held to investigate or consult about sickness absences do not attract the statutory right to be accompanied. However, it would be good practice to allow Sally to be accompanied in this scenario, particularly as ill-health issues may arise.

What should be included in a formal written warning?

A written warning should include a timescale for improvement, together with details of the action that the employer will take if there is no improvement. As with all disciplinary warnings, the duration of the warning should be made clear. If the warning is a final warning this must also be clear and that the possible outcome of no improvement is dismissal. The appropriate level of disciplinary action will depend on the specific circumstances. The right of appeal should also be stated.

What should Safe Insurance Co do if Sally's attendance improves during the period of the warning but later deteriorates?

If Sally's attendance improves within the specified time period and for the duration of the warning period, but deteriorates when the warning expires, Safe Insurance Co will be unable to move to the next level of disciplinary action (as if there had been no improvement). It will need to monitor attendance again and, assuming no satisfactory reason is given for the absences, follow the disciplinary process anew.

If Safe Insurance Co dismisses Sally without following the above procedure, what claims could she bring?

Sally could bring successful claims for unfair dismissal, and automatically unfair dismissal if the statutory dismissal and disciplinary procedure still applies. She could also claim disability discrimination if her absences are related to a disability and Safe Insurance Co has not attempted to investigate this possibility, and make reasonable adjustments. Sally may also be successful in a breach of contract claim if she is dismissed without notice or in breach of any contractual procedure.

Next week's article will be FAQs on short-term sickness absence and will be published on 26 January.

Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a solicitor at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.