Dismissal due to unsatisfactory attendance
[ch 8: pages 282-284]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 for a business 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.
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 the employer has correctly and fairly applied the attendance management procedure (including any reasonable adjustments for disabled workers; and
• whether the employee was warned of the possibility of dismissal if things 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 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 he 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
However, 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 before deciding to dismiss, 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 absence procedure. There may also be disability discrimination.
Employers should take into account all surrounding circumstances, including those that are not work-related, such as domestic abuse. Here is a good example:
With the support of her union UNISON, intensive care nurse Karen Allen-Powlett, 45, won her claim for unfair dismissal after being dismissed by a hospital Board after 15 short absences from work due to severe headaches brought on by the stress of marital breakdown, followed by a bout of flu seven months later, Allen-Powlett was dismissed even though she had told management that the stress was brought on by domestic abuse. The Board was ordered to pay compensation and reinstate her. "The end of the relationship heralded a return to better health for Karen, but after taking just one day's sickness absence during the next seven months for flu, she was dismissed, " said UNISON.
Allen-Powlett v Cardiff & Vale University Health Board, Cardiff Employment Tribunal Case No. 1600619/2016, 17 March 2017
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 useful way of obtaining information about absence patterns, where there is a recognised union.
Finally, there is the Public Sector Equality Duty (see page 257). Public sector employers (and private sector employers providing public services) must not breach this duty when designing and implementing absence management procedures.
Checklist: Representing a member at risk of dismissal for poor attendance
Issues to consider when representing a member who faces discipline or dismissal for poor attendance (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?
• Are there any organisational issues such as excessive workload that are exacerbating the absences? Check the HSE management standards for workplace stress;
• Does the member have a disability? Employees remain protected under the EA 10 where they had a past disability and have recovered. Frequent susceptibility to infection can be a disability. What adjustments have been considered, including to the procedure itself? (see page 231);
• 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, a bereavement, or domestic abuse? What support can be offered? Is there a reason to think things could improve in the near future?
• Has the employer used surveillance evidence? Was the use fair? (see Chapter 15);
• Is the employer applying the procedure rigidly instead of thinking about the individual worker?
• Is the employer following their own procedure correctly? And is it contractual (see page 273)?
• Are there allegations of workplace 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 workers? Is a different standard applied to managers?