It's important to have a sickness policy in place that allows you to get involved in dealing with your employee's illness. Return interviews for employees who have been off sick can help both parties identify and address any ongoing problems. It's also helpful to assess whether frequent absences may be as a result of a disability. If there is any possibility that your employee may be disabled, you need to consider your obligations under the Disability Discrimination Act 1995.
just after a duvet day?
If you come to the conclusion that your employee is malingering, you need to find out why. It may be that your employee is being bullied or intimidated, or that there is some psychological complaint or stress involved. Investigations need to be sensitively handled.
If there is any suggestion that your employee is being bullied, you need to take steps to protect yourself from a potential claim. Your duties as an employer include:
l A duty to take reasonable steps to ensure the safety and security of your workers
l A duty to prevent discrimination on any of the prohibited grounds
l Vicarious liability for the actions of your employees including actions which may amount to harassment under the Protection From Harassment Act 1997.
A breach of any one of these duties could potentially give rise to a claim against you. If the employee is in danger of developing a psychiatric condition (such as depression) which may affect their ability to work for a prolonged period as a result of a continuing failure to address the situation, you could end up facing substantial damages.
Dealing With Absence
The general advice in dealing with sickness absence is to treat it as a capability rather than a conduct issue. An employee's inability to perform the job he is paid to do is a potentially fair reason for dismissal. If you consider dismissal, you will need to follow a fair procedure.
Recent case law confirms that it is still possible to dismiss fairly on the basis of capability even when the employee's illness has been caused by you - where, for example, bullying in the workplace has led to psychiatric injury to your employee.
In these circumstances, though, you would have to show that you had done everything possible to assist the employee to return to work.
Getting It Wrong
There are several possible consequences of getting this process wrong; these range from failure to spot a problem leading to a claim for discrimination, or under the Protection From Harassment Act (which could be very bad) to dismissing a newly employed member of staff and facing a fairly minor claim for breach of contract.
The good news, according to a recent case, is that the employee's compensatory award in respect of salary during the notice period may be reduced if the employee would have been off sick for the notice period. In these circumstances, the employee may only be entitled to statutory or contractual sick pay for the notice period.
As an employer, no one expects you to be a charity and maintain employees who cannot or will not do their job. There is, however, an obligation to ensure that you behave fairly and reasonably and do not discriminate.
Preliminary investigation and an accessible support network are therefore important tools and employers should ensure that they are in full possession of all the facts before considering dismissal as an option.
Employers should ensure that they take detailed legal advice on their options at the earliest sign that there may be a problem.
Susanna Heley is a solicitor in Sykes Anderson LLP's Litigation and Dispute Resolution Department.