If you think your staff are being dishonest about sick days, particularly during the World Cup, you will need to manage the situation carefully. Legal expert Matthew Tom advises the best way to deal with short-term absences.
THE PROBLEM
Your employees are taking occasional sick days and you suspect they are not being honest about being ill. With the World Cup affecting staff attendance, you want to know how to manage this.
THE LAW
Every employment contract requires parties to conduct themselves in ways that do not destroy or undermine mutual trust and confidence. Breach of this fundamental term of every employment contract can entitle an employee to claim constructive dismissal.
Also, any dismissal will be unfair unless the employer establishes a "potentially fair reason" for dismissal and acts reasonably in deciding to dismiss for that reason.
EXPERT ADVICE
Employers should monitor levels and pattern of absences, for example Mondays and Fridays. While patterns can arise genuinely (e.g. via stress or depression) they can also indicate dishonesty.
Holding informal "return to work" interviews after every absence can be a subtle but highly effective deterrent, ensuring employees understand that every absence is noted.
Interviews can also identify both genuine underlying problems and indications of dishonesty. In a 2006 CIPD survey, 72% of employers considered interviews the most effective way to manage persistent absence problems.
Employers could amend sick pay policies to incorporate three unpaid "waiting days", as per Statutory Sick Pay. However, changing employees' contracts can risk constructive dismissal and advice on implementation should be sought. Morale problems can also arise if employees lose pay due to others taking liberties.
Clear evidence of dishonesty can be treated as breach of trust and confidence. Gross misconduct justifies immediate dismissal, however investigation with the employee is an essential first step and responses must be reasonably considered, including consulting medical experts where relevant.
Making allegations of dishonesty without proper investigation and reasonable evidence may well result in constructive dismissal claims and individuals' potential embarrassment about discussing stress or mental health issues needs to be properly considered and investigated.
In practice, dismissal for gross misconduct can increase the risk of litigation and a final written warning is often preferable in the first instance. However, consistency of treatment is fundamental to fairness and inconsistent treatment can lead to unfair dismissal and discrimination claims. Any disciplinary procedures should follow the ACAS Code of Practice.
Even without dishonesty, it may still be fair to dismiss on the basis of poor attendance itself. However, employers will need to demonstrate that they have investigated and considered all other options before taking disciplinary action and should adopt a series of warnings rather than dismissing immediately.
CHECK LIST
• Monitor absences and hold informal interviews after absences
• Commence disciplinary action only as a last resort, unless dishonesty is clear
• Consider amending sick pay terms
• Treat employees consistently and follow the ACAS Code at all stages
BEWARE!
Compensation for unfair dismissal (including constructive dismissal) can be as high as £65,300. Discrimination claims have no overall cap on compensation and can include compensation for "injury to feelings" up to £30,000.
CONTACT
Matthew Tom, head of employment, Candey LLP
020 3328 7773
● Candey is holding a seminar addressing persistent short-term absenteeism on Tuesday 13 July. For more information e‑mail Julie Taylor at jtaylor@candeyllp.com