Intermittent absence

In cases of intermittent absences due to ill health, the employer may not always need to obtain medical evidence before carrying out a fair dismissal. However, given that frequent short-term absences may have an underlying medical cause, an employer considering dismissal for excessive intermittent sickness absence would be well-advised to try to get some expert medical guidance on the employee’s condition and on the likelihood of further absences, with the employee’s consent. An employer who fails to do this risks a claim for unfair dismissal and possibly disability discrimination.

The EAT has said that an employer considering dismissal for intermittent absence must take into account the whole history of the employment including a range of factors, such as the nature of the illness and the likelihood of recurrence, the length of absences compared with the intervals of good health, the employer’s need for that particular employee, the impact of absences on the rest of the workforce and the extent to which the employee was made aware of the position (Lynock v Cereal Packaging [1988] IRLR 510). Tribunals will always take into account the size and resources of the particular employer when deciding whether its actions were reasonable.

A dismissal for intermittent absence can be fair even where an individual is fit for work at the date of the dismissal (Wilson v Post Office [2000] IRLR 834).