When Can Sick Leave Be Treated as Misconduct?

There are generally two types of sickness absence – persistent bouts of short term absence, and long term absence attributable to serious illness or disease. It is wise for an employer to recognise the distinction between the two and treat them differently. This is because, ultimately, a tribunal would expect different procedures to have been exhausted by employers in these differing situations, should a claim for unfair dismissal be made. Generally, persistent bouts of short term absence can be dealt with as a conduct issue – those absences that are never really linked to anything in particular but occur frequently. It’s a common occurrence in most workplaces: the staff member who has a couple of days off with complaints of a bad cold; a day off with backache the following month; 3 days off with an ear infection a few weeks later. Although it may not be apparent to the employee at the time, their absence leads to disruption in the workplace that takes time and effort to manage. High levels of disruption and uncertainty caused by ad hoc sickness absence cannot be tolerated by employers, and the situation must be addressed. Where absences are reaching an unacceptable level, or are hitting a trigger point that is pre-determined by an employer which means that the situation needs to be looked at, it’s important to firstly question the employee to ascertain if there is an underlying condition connecting the absences. If there is, then further investigation is required into the employee’s health, perhaps including independent medical reports, to obtain a prognosis and medical opinion on how any barriers to the employee’s proper performance of the job may be overcome. Specific attention needs to be paid if it is established that the employee has a disability. It is not appropriate to deal with this absence as a conduct issue. If there is no link underpinning the absences, then a conduct/disciplinary procedure would probably be the most fitting way to deal with the issue. This is because the persistent absences are likely to be a breach of company rules and can be dealt with in the same way as other breaches. Dismissal is extremely unlikely to be a fair sanction for the first time the employee is put through a formal procedure, therefore a series of warnings is most likely to be required before dismissal. Implementing a disciplinary procedure for sickness absence does not assume that you consider the sickness to be fake – it does not automatically infer that you don’t believe the employee is sick. It simply means that your company cannot perform at its best because of the absence and therefore it must be addressed. If you need further details regarding sickness absence, please call the Peninsula advice service on 0844 892 2772.