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ABSENCE FROM WORK


Where an employee's level of sickness absence may eventually require the employer to consider the possibility of dismissal. For that dismissal to be judged as fair the employer must be able to show that:

the employer was adequately informed about the employee's illness, and,

the decision to dismiss the employee was reasonable in light of that information.

Consultation and Discussion

Consultation and discussion should first be undertaken directly with the employee. The employer should seek to find out from the employee the true nature of the illness. Such consultation should not at this stage be deemed or referred to as a disciplinary procedure or a "warning" about the employee's levels of absence. Such phrases are linked to misconduct. This is not appropriate where it is actually an employee's capability to carry out his or her job due to ill health absence, which is actually the issue. The emphasis at this stage must be, at least ostensibly, on sympathy, understanding and compassion.

There is no set procedure for such consultation, the emphasis being on the employer taking such steps as are necessary according to the individual circumstances of the case to gather information upon the true medical position. Full records of the absenteeism should be kept and these should be drawn to the employee's attention.

Medical Advice

Following on from consultation with the employee the employer should consult a doctor about the nature of the employee's illness. This may be with the employee's own doctor and/or with an independent doctor appointed by the employer. The employee's consent to such an examination will be required and the employer cannot insist on the examination. However, if the employee refuses to agree to a request to be medically examined the employer will have to act on the available facts. In such cases an Employment Tribunal would take account of the refusal and the dismissal may be fair even if, had medical opinion been available, it would have been unfair.

The employer has a duty to consider what reasonable measures may be introduced to alleviate such working conditions which may be contributing to or exacerbating the illness (e.g. stress).

Such considerations should include the possibility of offering the employee alternative employment should such a position be available. If there is no underlying illness and no real problem with work, and the absenteeism is at a level to justify it, a warning must inevitably be considered as the next step.

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Leeds: Phoenix House, 3 South Parade, Leeds, LS1 5QX

Harrogate: 41 East Parade, Harrogate, HG1 5LQ

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Leeds: 0113 2431714

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Email: mail@richardsonlaw.co.uk


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