Trigger systems: is it reasonable to discipline an employee for being sick?Posted in : Seamus Says - Employment Law Discussion on 4 May 2018
Q: We use a trigger system to manage sickness absence - is it reasonable to discipline an employee for being sick? Could you suggest a better way to manage sickness absence which would be viewed more favourably by a tribunal if it got to that stage?
Seamus: Well, this trigger system that the query relates to, this is one that you’ll come across often enough in terms of employers that have systems in place where if you have so many days off on sick, there will be a trigger and it will result in possibly a disciplinary meeting followed by some sort of disciplinary outcome and then you’ll usually see the scale that will apply. It will start off maybe with a verbal warning, followed by a written, and ultimately dismissal, as well as really what we’re looking at rather than it being a sickness issue and penalising somebody for being sick.
It’s better to look at it on the issue that it’s a capacity issue in terms of their ability to do the job. What you do need to have is a really good attendance policy in place that will set all this out and detail it out. But ultimately, if you are dealing with capability issues with employees that are not attending work, you’re entitled to move through your procedure in terms of that. I don’t have a difficulty with it.
But I think that rather than looking at it from a sickness point of view, that you’re looking at where the capability, is the person capably fit to do the role and do the job. If they’re not, if the policy is clear about what the expectations are and there’s a process in place in terms of saying to the employee, ‘We are concerned, we’re unhappy with your level of absence,’ for whatever reason because it might necessarily just be they’re sick.
There could be other issues for it, but you’re working through a process, you’re giving the employee fair warning and saying to them look, this is the first occasion, but it’s red-flagging up here that you’ve had so many days off, the job’s there need done and there are apparent capability issues in terms of you being able to do that and working through that process.’
Scott: It’s really just the language. You can use a disciplinary policy for intermittent absences if you want, but it’s more about “we have certain standards of attendance” and an absence policy might be a better one. Our tribunal is not going to really hold it against an employer if you warn and discipline and dismiss an employee because their absence levels have been poor or whether you do that through an absence policy or a capability policy because they’re incapable of achieving your standards of attendance.
It’s the same thing but it probably is cleaner just to break it and say, ‘These are our standards, these are our triggers. These are our targets,’ whatever it happens to be. If you don’t meet them, we will take you through a process.
Seamus: That’s it. It’s just, I suppose, again, back to that repetitive element of discipline. You’re always following through on your statutory procedure, your one, two, three procedures with that. There can be an inclination sometimes with employers that they’ll get very frustrated in terms of someone they’ve spoken to about their absence and they continue to be bad attenders at work.
Even this week, I dealt with a case where the employer simply just out of pure frustration, pulled the employee and said, ‘You have been warned before. I told you in advance what the problems are and you’re gone. I’m sacking you on the spot.’ They fool you after that and you think, ‘What about your one, two, three procedures?’ And they come back to you and say, ‘Look at all the absences, look at all the times.’ It will be maybe the Monday-Friday aspect of absence where you can see there’s a clear pattern and a clear issue that’s arisen, but unless you’re following through on your statutory procedure, you’re going to be left in difficulties.
Scott: The other problem there you have is the employer leaves it too late to deal with it. So, it builds up and builds up and you get that frustration. I understand that from an employer’s point of view. But really, their job is to nip it in the bud early and before it becomes a trend or a pattern or you’re looking at an alcohol issue or largely an attitudinal issue if people have got intermittent absences, they’d rather be off than be at work. That has to do with motivation and engagement and lots of other non-employment issues, really.
Seamus: The danger of not nipping it in the bud at an early stage is simply that the employee will think this is acceptable. They’ll say, ‘Sure, I’ve done this before, it hasn’t caused a difficulty. I’ll just head out on a Sunday night and not worry about it because I’ll just call in sick tomorrow.’ That’s the mentality that can arise, but certainly from a management point of view, dealing with it early is key.
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