Managing persistent employee sickness absence

This is a common issue for employers and needs to be handled carefully to balance your operational needs against the employee's rights. The approach depends on the nature of the absence, whether there is a genuine underlying health condition, and what policies you already have in place.

Understanding the legal framework:

Employees who are genuinely ill are entitled to statutory sick pay for up to 28 weeks in any period of incapacity for work, provided they meet the eligibility conditions. Beyond that, any contractual sick pay depends on the terms of employment.

The key legal risks when managing sickness absence are disability discrimination under the Equality Act 2010, unfair dismissal under the Employment Rights Act 1996 (for employees with two or more years' continuous service), and potential claims for detriment or harassment if the situation is mishandled.

If the absences are related to a disability within the meaning of the Equality Act 2010, meaning a physical or mental impairment that has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities, you have a duty to make reasonable adjustments and must not treat the employee unfavourably because of something arising in consequence of their disability.

Practical steps to take:

1. Check your sickness absence policy. If you do not have one, this is a good reason to put one in place. A clear policy sets expectations, defines trigger points, and provides a fair framework. It should cover notification requirements, evidence requirements such as fit notes, return-to-work interviews, and the process for managing persistent short-term or long-term absence.

2. Keep accurate records. Log every absence including dates, reasons given, whether a fit note was provided, and any patterns you notice. Patterns might include frequent Mondays or Fridays, absences coinciding with specific events, or absences clustering around particular times of year.

3. Conduct return-to-work interviews after every absence. These are simple, brief, and non-confrontational conversations. They serve several purposes: they show concern for the employee, they allow you to understand the reason for absence, they help identify whether workplace adjustments might help, and they act as a natural deterrent against casual or dishonest absence.

4. Use trigger points. Many employers use the Bradford Factor or simple trigger thresholds, for example three absences in a rolling twelve-month period, or a set number of days. When a trigger is hit, this prompts a more formal conversation but does not automatically lead to disciplinary action.

5. Hold an absence review meeting. If absences continue, invite the employee to a formal meeting under your absence management procedure. Explain the level of absence, its impact on the business, and ask for their explanation. Consider whether there is an underlying medical condition and whether an occupational health referral would be appropriate.

6. Consider an occupational health referral. This is particularly important if you suspect a disability or a longer-term health issue. An occupational health report can tell you whether the employee is fit for their role, whether adjustments could help, and what the prognosis is for future attendance. You need the employee's consent to obtain this.

7. If the absence is genuinely related to a health condition, explore reasonable adjustments. These might include altered duties, phased returns, changes to working hours, changes to the physical environment, or temporary redeployment.

8. If informal steps and formal absence management meetings do not resolve the issue, and there is no underlying disability or the absences are not genuine, you may eventually be entitled to dismiss on grounds of capability or conduct, depending on the circumstances. Capability dismissals apply where the employee genuinely cannot attend regularly due to ill health. Conduct dismissals may be appropriate where absences are not genuine. In either case you must follow a fair procedure, which generally means investigation, a formal hearing with the right to be accompanied, a decision, and a right of appeal. For employees with two or more years' service, you must be able to show that the dismissal was fair under section 98 of the Employment Rights Act 1996.

Key warnings:

Do not jump to disciplinary action too quickly. Tribunals expect employers to have taken reasonable steps to understand and manage the absence before considering dismissal.

Do not ignore the possibility of disability. Even conditions that might seem minor or intermittent, such as depression, anxiety, IBS, or musculoskeletal conditions, can qualify as disabilities under the Equality Act 2010. The threshold is lower than many employers assume.

Do not treat the employee less favourably because they have taken sick leave if that sick leave is connected to a disability, as this could amount to discrimination arising from disability under section 15 of the Equality Act 2010.

Do not make assumptions about whether the absences are genuine without proper investigation.

If you do not already have a clear sickness absence policy, getting one in place should be a priority. It protects both you and the employee by ensuring consistency and fairness. If the situation is complex, particularly if disability may be involved, it is worth taking specific advice before moving towards dismissal, as the financial exposure in disability discrimination claims is uncapped.