Dealing with health-related absenteeism is a tough problem for the small-business owner. On the one hand there is a need to be sensitive to your employee’s unfortunate situation. On the other hand there is work to be done and you may need to recruit and pay someone else to step in for them during their period of incapacity. A case of long-term sickness or injury is likely to work out very expensive and will need careful handling.
Determine the reason for absence
If the employee is unable to give an acceptable reason, treat the absence as an issue of conduct and follow standard disciplinary procedure. Be aware that dismissal without notice is only acceptable if your investigation finds “gross misconduct” – i.e. unacceptable or improper behaviour serious enough to invalidate the contract of employment between you and your employee.
The employee has stopped working due to injury or ill health
If your’re dealing with health-related absenteeism you should be asking the following questions:
- What is the employee’s illness, injury, or disability?
- How soon will the employee’s health and attendance improve?
- What impact will the employee’s absence have on your organisation?
- Has the employee’s GP issued a Statement of Fitness for Work or “Fit Note” (doctors cannot issue a fit note during the first seven calendar days of sickness absence)?
- Does the fit note make any suggestions for helping the employee back into work?
- Is alternative work available?
- How have you handled similar situations in the past?
Can you help the employee back to work?
Dismissal is a last resort and you have an obligation to consider as many ways as possible to help the employee back to work, including:
- obtaining a medical report from their GP with the employee’s permission;
- arranging an occupational health assessment;
- establishing whether or not they’re disabled with reference to the Equality Act;
- establishing whether the employee has any rights to contractual payments during their absence;
- making any reasonable adjustments to help the employee do their job.
Remember your data protection obligations
Any information you obtain for the legitimate purpose of assessing your employee’s working capacity must be processed with due regard to the provisions of the Data Protection Act 2018 (DPA) and the General Data Protection Regulation 2016/679 (GDPR). Information regarding a persons health is “special category data” due to its sensitive nature. Such data needs more rigorous safeguarding to protect the employee’s fundamental rights and freedoms and to avoid putting them at risk of unlawful discrimination.
If the employee cannot be helped back into work
If the employee cannot do their job because there are no reasonable adjustments that you can make, it may be fair for you to dismiss them, even if they are disabled. You can get free HR and employee relations advice from The Advisory Conciliation and Arbitration Service (ACAS).
© 2018 Paul J Lockey