Absenteeism can arise in a variety of ways, largely for medical reasons, but not exclusively.
In some ways, unauthorised absence for non-medical grounds is easier to deal with. Often, such cases can be treated as misconduct under the employer's disciplinary procedure.
However, before embarking on a disciplinary process, it is worth asking why a member of staff is absent. Are there any underlining issues that means that person would rather be away from work rather than at work?
As far as medical absences are concerned, there are generally two different types of absenteeism:
- Regular intermittent absences
- One underlying health problem
Whatever the nature of the absence or absences, as with any other issue affecting an employee, the employer needs to investigate the matter. If there is an underlying health problem, this investigation will almost always require a medical report so that the employer understands the problem and obtains some kind of prognosis (i.e. when will the employee return to work?)
If the employer wishes to obtain a medical report from a doctor who is treating the employee, the employer will need to comply with the Access to Medical Reports Act. This requires the written consent of the employee and gives the employee the right to see the report before the employer does. Reports from the treating doctor can be helpful in understanding the reason for the absence and the treatment being received. Where it can be less helpful is in terms of prognosis - the treating doctor is likely to have more sympathy with the employee than with the employer.
Accordingly, employers should also consider obtaining a medical report from an independent doctor or Occupational Health.
Once the matter has been investigated, there should be an open dialogue with the employee. Employers should try to be flexible - it may be that a phased return to work will be necessary; some duties may need to be altered; it may be appropriate to allow the employee to work from home.
Such cases can be difficult because they require a balance between the needs of the business and being sympathetic with an employee who has a genuine medical issue. Ultimately, however, the needs of the business trump the individual circumstances. If everything reasonable has been done and absenteeism is still unacceptable, that could be a fair reason to terminate the employee's employment. Clearly, legal advice should be sought at that stage.
Particular care needs to be taken if a medical reason for the absence amounts to a "disability” as defined by the Equality Act 2010. The law does not mean that disabled staff cannot be dismissed - it states though that they cannot be dismissed because they are disabled or if reasonable adjustments can be made to accommodate that person's disability.
As you can see, an employer's hands are not tied - there is a fair and sensible process that can be followed to protect both employer and employee. Employers can though, get it wrong as they go through this process - our Employment law team will guide you through it, giving legal advice with relevant and realistic commercial considerations alongside that technical advice.
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