, , , , , , ,

Sickness is back up to 2011 levels, says the Simply Health/CIPD research with an average of 7.6 days per employee (more in the public services 8.7 and less in manufacturing/production – just 6 days)

An employer can only stomach the plummeting morale issues and loss of productivity so much and they will eventually dismiss.  In order to do so fairly, they must firstly identify one of the potentially fair reasons listed in S.98(2) ER Act, namely;

  1. capability,
  2. conduct,
  3. redundancy or
  4. contravention of a statutory enactment.
  5. Alternatively, the reason must be such as to fall within the residual category of ‘some other substantial reason of a kind such as to justify the dismissal of an employee’ (SOSR).

Both ‘conduct’ and ‘capability’ have caused problems when applied to cases of dismissal for persistent short-term absences. Dismissal as a result of absences caused by genuine sickness or disability has generally been treated as falling under capability. Where there are unauthorised absences, the reason for dismissal is generally conduct.

However, in certain cases it has been stated that an employee who is frequently absent because of a genuine illness may be fairly dismissed for SOSR. The attendance procedure has been seen as a valid method of ensuring reliability of staff.

Secondly, the tribunal must consider whether the employer acted reasonably in dismissing for one of the above reasons. In dismissals for absenteeism, there is a range of reasonable responses open to an employer. If the decision to dismiss falls outside the band of reasonable responses, the dismissal will be unfair.

In the leading case of International Sports Co Ltd v Thomson (1980 IRLR 340) the Employment
Appeals Tribunal outlined what is required where there is an unacceptable level of intermittent

A fair review by the employer of the attendance record and the reasons for absence

  1. An opportunity for the employee to make representations
  2. Appropriate warnings of dismissal if things do not improve.

If there is no adequate improvement in the attendance record, the EAT ruled that a dismissal
will be fair.


Return-to-work interviews are invaluable to the employer in identifying why an employee has been away and will assist in working out a trigger point if action is to be taken. If the reason for absence is for personal reasons such as a family break up or grief it will be more difficult for the employee to rely on that reason again and suggests that an improvement will occur.

If the employee identifies a drink/drugs issue then those respective policies may supersede any procedures on handling short-term absenteeism.

Reviewing the employee’s record and reason for absence may bring to light an underlying medical condition. Employers should seek proper medical opinion in order to determine;

  • the extent and likely duration of the condition
  • whether, and if so how soon, treatment will bring the absenteeism down to an acceptable level.

Particular consideration is to be given to whether the condition amounts to a disability.

Where ill-health is the reason for absence, the illness may fall within the definition of a disability under the Act, for example, persistent short-term absences may be the result of a recurring condition or symptomatic of an underlying condition that amounts to a disability.

With longer term absences a domiciliary visit by an Occupational Help expert is advisable.