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Dismissal due to a poor attendance record
[ch 8: pages 277-278]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 employers need a consistent pattern of attendance in order for a business to function effectively. Even so, a dismissal without medical evidence is risky for the employer because there could be an underlying medical cause to the absences, including a possible disability.
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;
• 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; and
• whether the employee was warned of the possibility of dismissal if things did not improve.
See Lynock v Cereal Packaging [1988] IRLR 510.
Tribunals should take into account an employer’s size and resources when deciding whether its actions were reasonable.
As well as giving a clear written warning of the consequences of further absence, employers must stand by the terms of their warning. Otherwise the dismissal is likely to be unfair. For example, it would be unfair to give an employee six months to improve their attendance record and then dismiss them for poor attendance after just two months.
A dismissal for intermittent absence can be fair even if an individual is fit for work on 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 the employee was fully fit by the dismissal date (see Chapter 10: Dismissals for some other substantial reason):
The communications union CWU negotiated an absence procedure with the Post Office involving three stages. Mr Wilson breached the procedure and was dismissed. The reason for the dismissal was not “capability” because Wilson was fit for work by the time of his dismissal. Neither was Wilson guilty of misconduct. Instead, the dismissal was “for some other substantial reason”, namely the breach of a negotiated procedure designed to enable effective workforce planning. The tribunal ruled that the dismissal was fair.
Wilson v Post Office [2000] IRLR 834
Even where there is a negotiated absence procedure in place, employers should still investigate the surrounding circumstances before deciding to dismiss, including the reasons offered for each absence, and must give the employee an opportunity to put their side of the story. A dismissal will not be fair just because the employee has breached the terms of an agreed absence procedure. There may also be disability discrimination.
Checklist: Representing a member who is at risk of dismissal for intermittent absence
Issues to consider when representing a member who faces discipline or dismissal for intermittent absence:
• Are there medical reasons for the absences? Has the employer investigated these properly?
• Has the employer provided adequate support and access to occupational health services?
• Does the member have a disability? Remember that employees remain protected under the EA 10 even where they had a past disability and have recovered. Frequent susceptibility to infection can be a disability. What reasonable adjustments have been considered, including to the procedure itself?
• What about the member’s past record? What has changed to cause a sudden deterioration? Is it temporary, for example, caused by difficulties at home because a partner has left, or a bereavement? What support can be offered? Is there a reason to think things could improve in the near future?
• Has the employer used surveillance evidence?
• Is the employer applying the procedure rigidly instead of thinking about the individual?
• Is the employer following the procedure correctly? Is it contractual?
• Are there allegations of bullying or harassment? Are they being dealt with properly?
• Does the employer apply its attendance procedure consistently, or is it applied more harshly against particular groups, such as older workers, carers or lower paid operatives?