FAQ: Absence

Can I insist that my male employees take annual leave instead of paternity leave?

No. With effect from 6th April 2003, male employees have the right to two weeks paid paternity leave. Pay is made at the rate of 90% of the average weekly earnings or £100 per week, whichever is the lowest amount.

Can an employer dismiss an employee in cases of long term sickness?

You can ultimately dismiss but only by following the capability procedure and by ensuring that medical opinion is obtained at every stage.

Can an employer contact an employee’s GP direct to request a medical report?

No. The employees consent must be obtained in writing prior to the letter being sent to the doctor and the employee given the opportunity of seeing the report before it is sent to the company.

How should an employer manage long-term sickness absence?

Managing long-term sickness absence is a difficult process and has the potential to result in claims for unfair dismissal, disability discrimination, breach of contract or a payment to settle such claims.

Long-term absence is nearly always the result of physical or mental ill health. High absenteeism or large staff turnover, frequent interpersonal conflicts or complaints by workers are signs that may also indicate a problem of work-related stress.

Large organisations may be able to address these problems through more flexible working policies.

In smaller organisations there may be a real need to replace the employee which must be handled cautiously and by following both the statutory and the company’s own capability, disciplinary and dismissal procedures. The issues to be considered during the process and in meetings with the employee include:

  • Just how much damage is being caused by this absence?
  • How long will the absence continue for?
  • What is the employee’s GP or consultants’ prognosis?
  • Will there be a full recovery or will a return to the same work be imprudent?
  • Is alternative work available, with re-training if necessary?
  • How long has the employee been working for the organisation?
  • Have all possibilities been discussed with the employee and their representative?

How should an employer treat short-term absence?

In order to manage sickness absences issues it is important to fully understand the extent of the problem. Employers need to distinguish between lateness, short-term absences and long-term absences.

Where the absence consists of lateness or short but persistent and apparently unconnected absences then, after suitable investigation, disciplinary action may be appropriate.

The key steps in proactively managing short-term absence are: 

  • Investigation of the level and reasons for absence – consider the use of return-to-work interviews with line management and completion of self-certification forms even for one day of absence.
  • Monitor trends in the particular workplace to fully understand the pattern and reasons for absences.
  • Authorise reasonable absences to cover medical appointments, including ante-natal care. All pregnant employees, regardless of service, are entitled to reasonable, paid time-off for ante-natal care.
  • Allow for authorised absence whenever appropriate to cover specific religious observances of minority groups.
  • Consider requesting a medical report to establish if there is any underlying medical condition to support the level of absence; there may be a hidden condition and links to disability discrimination which may not be immediately apparent.
  • If there are no good medical reasons for the absences, the employee should be counselled and told what improvement is expected and warned what the consequences will be if none is seen.
  • Disciplinary action in accordance with the organisation’s procedure may be appropriate but always treat each case on its merits. For example, if absences were due to domestic problems now resolved it is unlikely that the level of absence will continue, so is it appropriate to discipline?
  • If there are medical reasons for the absence, consider any links to the Disability Discrimination Act 1995 (DDA). For example, does the absence relate to hospital appointments or treatment required? If this is the case, section 6(3) of the DDA requires an employer to make reasonable adjustments which includes allowing time off for treatment.
  • If the employee has a recognised illness or medical condition that is not a disability but their absence rate is unacceptably high, it may be possible to dismiss fairly for some other substantial reason after following due process. The employee’s length of service and the availability of suitable alternative employment are relevant factors to consider before reaching a decision.

Please note that while every care has been taken in compiling these notes, the notes are not intended to be a substitute for specific legal advice on the merits of individual cases.

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