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 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): 




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:


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.