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Hot HR Question re: sickness absence

February 17, 2011 6:57 am Published by Leave your thoughts

Managing sickness absence fairly

One of my employees has taken an unacceptable amount of sick leave. She claims she is disabled, but I have no proof of that. Can I dismiss her?

What Spirit HR says …

It is possible to dismiss an employee on the ground of incapacity due to ill health, however you must follow a fair procedure.

You should consult with the employee and obtain consent for a medical report to understand her health issues including whether or not she is disabled. The report request should contain specific and clear questions to assist your decision making and onward management. If the report confirms she is disabled you will need to ensure you are fully compliant with the new Equality Act 2010.

Keep an open dialog with the employee and carefully manage meetings to avoid the situation becoming emotional or confrontational. Plan a strategy to manage this issue and keep notes of all meetings. Gather factual evidence and make balanced and reasonable decisions. If disability is a factor you will need to look at reasonable adjustments.

Unfortunately there is no magic formula to guarantee managing cases like this correctly. What is ‘reasonable’ potentially changes on a case by case basis as employment tribunal decisions are made.
Watch out for potential claims of unfair dismissal (depending on her length of service) and disability discrimination. Depending on the nature of the ill health / disability you may be at risk of sex discrimination claims too (direct and indirect).

As ever, difficult situation are full of opportunity for employers to make costly mistakes.  If you have a difficult situation and you are not sure how to handle it correctly within the law, give us a ring on 0845 463 3231or email us and we’ll ring you back.

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