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MILS Case Study: Dismissing new employees for absence/illnessBack

MILSLogo2“I have recently taken on an employee, about a month ago, but she isn’t proving to be very reliable.  She is a receptionist but has already had 5 days off with a variety of medical complaints.  What do I do?  I don’t want to be unfair to her but I’ve got a business to run and it is very difficult to cope without the receptionist taking the calls?”

Many employers believe that it is more difficult to dismiss an employee who is ill than one who has committed an act of misconduct.  Provided the employee has well under 2 years’ service (and note that normal unfair dismissal rights actually apply a week below two years) that is not necessarily the case.

When dealing with employees with under 2 years’ service, an employer is perfectly entitled to dismiss an employee if their illness/absence creates difficulties and is not always necessary to go through the full disciplinary procedure in terms of medical evidence and written warnings before taking that decision.

There are however caveats to that general advice. Absence issues can sometimes give rise to claims, and the most common ‘banana skins’ for employers when dismissing employees with short service who are absent, are as follows:

  1. The risk that any absence could be related to a long term condition, so as to satisfy a disability under the Equality Act 2010. To qualify as a disability the condition has to be long term and have a substantial adverse effect on day-to-day activities.  It is sometimes possible that (even if they appear to be short term issues) absences are linked to some longer term condition. Clearly if they are coughs, colds or other minor issues that is unlikely.
  1. Be careful also that any absences are not related to pregnancy related illness or similar issues, as that can give rise to claims for sex and pregnancy discrimination.

In the scenario described above therefore if the employer had satisfied itself that those risks do not apply then the next step is very much at the employer’s discretion.  It could of course be sympathetic, give a warning and try to improve the issues, but if it is too disruptive it could take a view and invite the employee to a meeting to consider dismissal on the grounds of absence.

If the employer decides to proceed, it is usually advisable to lay a basic paper trail, involving a written invite to a hearing to consider dismissal on the grounds of absence, a minuted discussion regarding the issue and a decision letter, ideally with the right of appeal.  Although not following that procedure wouldn’t necessarily give rise to claims, by doing so the employer lays the foundation of a defence in the Tribunal, if the employee should try to claim that they were dismissed for any automatically unfair reason (most commonly discrimination, whistle-blowing or asserting statutory rights) for which length of service is not required to bring claims in the Tribunal.

Andrew Macmillan, Solicitor, Motor Industry Legal Services

Posted by Sue Robinson on 19/08/2016