Capability and disciplinary procedures

Where an individual’s absence becomes a cause for concern it may trigger a capability or disciplinary procedure with a range of possible outcomes (including dismissal). Unions will want to ensure that there have been a clear and sufficient number of stages, opportunities to improve, the involvement of “independent” managers and proper trade union representation.

The Acas Code of Practice on disciplinary and grievance procedures says it is important to determine the reasons why the employee has not been at work. If there is no acceptable reason, the matter should be treated as a conduct issue and dealt with as a disciplinary matter, but if it is due to genuine (including medically certified) illness, it would be helpful to consider:

• how soon the employee’s health and attendance will improve;

• whether alternative work is available;

• the effect of the absence on the organisation;

• how similar situations have been handled in the past; and

• whether the illness is a result of disability

It is up to employers to reflect that sort of approach in their own policies. At Liverpool John Moores University, long-term sickness absence can end in a capability hearing if recovery is not expected, no return to existing or alternative employment is foreseen, and ill health retirement is not granted, appropriate or acceptable. But before taking that step, the manager should consider:

• the available medical prognosis;

• the requirements of the Equality Act 2010;

• is complete recovery that will enable the member of staff to return to work likely and, if so, when?

• how long has the member of staff worked for the University?

• is the job a key job? If so, how long can the School/Service Area effectively function without that contribution?

• what additional demands has the absence generated for other members of staff and the School/Service Area?

• is alternative employment or a transfer available, suitable and acceptable?

However, practice may not always match commitments on paper. The PCS civil service union has experienced capability procedures being used to force members out of their jobs, apparently targeting members suffering from repetitive strain injuries or work-related upper limb disorders (RSI/WRULD).