Dismissal due to unsatisfactory attendance 





Medical evidence is not always needed for a fair dismissal for frequent intermittent absences due to ill-health, even if the ill-health is genuine. This is because tribunals recognise that businesses need a consistent pattern of attendance in order to function effectively. Even so, a dismissal without medical evidence is risky for the employer, since there may be an underlying medical cause to the absences, including a disability. Susceptibility to repeat infections can be a disability (see page 210).




A reasonable employer considering dismissal for intermittent absence should take into account the whole history of the employment, including factors such as:





• the nature of the illness(es), including any underlying disability;



• the cause of the illness(es), including whether they are work-related, such as stress, bullying or work overload;





• the likelihood of recurrence;





• the length of absences compared with intervals of good health;





• the employer’s need for that particular employee;





• the impact of absences on productivity and on the rest of the workforce;



• the employer’s size and resources;



• the need for consistency in the treatment of workers;




• whether attendance management procedures have been applied correctly (including any reasonable adjustments for disabled workers (see page 243); and





• whether the employee was warned in writing of the risk of dismissal if attendance did not improve. 




See Lynock v Cereal Packaging [1988] IRLR 510. 





A dismissal for intermittent absence can be fair even if an individual is fit for work by the dismissal date. In Wilson v Post Office [2000] IRLR 834, the Court of Appeal ruled that an employee could be fairly dismissed for “some other substantial reason” when his attendance fell below the level required by an agreed attendance procedure, even though he was fully fit by the dismissal date (see Chapter 10: Dismissals for some other substantial reason): 





Even if there is an absence procedure in place (including one that has been negotiated by a recognised union), employers should still investigate the surrounding circumstances (including those that are not work-related, such as domestic abuse) before deciding to dismiss for intermittent absence, and they must give the employee an opportunity to put their side of the story. A dismissal will not necessarily be fair just because the employee has breached the terms of an absence procedure.



Here is a good example:


Remember that where a union is recognised, there is a right to set up a safety committee under the Safety Reps and Safety Committee Regulations 1977. The safety committee can ask for information about the workplace attendance record and can use it to look for patterns.



Remember also the statutory right to information for collective bargaining purposes, explained in Chapter 5. This can be another way of obtaining information about absence patterns, where there is a recognised union.



Finally, there is the Public Sector Equality Duty. Public sector employers (and private sector employers providing public services) must not breach this duty when designing and implementing absence management procedures. An employer that wants to show that they comply with the duty when implementing attendance procedures will need to be keeping a record of disciplinary attendance warnings and dismissals, broken down according to the relevant protected characteristics (see Chapter 7, page 269).