Employers Questions - Sickness Absence And Disability

Q1: We have an employee with just over one year's service who has recently been having a lot of intermittent sickness absence, for a range of different reasons, usually on a Friday or Monday. Can we dismiss him?
Q2:One of our long serving employees has a medical condition which has resulted in her being on sickness absence for around six months and there appears to be no immediate prospect of her return. We have been stung before - are there certain steps we should be taking to prevent her bringing a claim against the Company?
Q3: Our Financial Director wants us to go through the books and dismiss those employees who have been off sick for more than three months. We have around four such employees whose continuing absence is costly for the Company - can we sack them?
Q4: Is it true that employers with 15 or fewer employees are exempt from the Disability Discrimination Act 1995?
Q5: If I dismiss an employee who is on sick leave do I have to pay her notice and holiday pay?
Q6: We have a senior employee who is known to have an alcohol problem and is believed to drink at work. Because he is out of the office much of the time we do not know how much he is drinking and whether it is affecting his performance. What can we do about it?
Q7: We recently advertised for a Marketing Manager and we have received an application from an individual suffering from depression - otherwise she appears extremely eligible for the vacancy. Our Marketing Director has refused to interview her. Will there be any repercussions if we just reject her for the post?
Q8: If we are unsuccessful at the Employment Tribunal, what award can be made for disability discrimination?

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If you require legal advice on this or any other employment law issue, please contact Tony Hyams-Parish or your usual contact in the employment team at Rawlison Butler LLP.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.

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Answers to questions below, please click on the questions above to be directed to the correct answer.

A1: If you do simply dismiss him you will be at serious risk of a successful employment tribunal claim against you for unfair dismissal. You need to determine the reason for the absence and whether it is a genuine case of sickness absence with an underlying health problem or a case of unauthorised sickness absence to be dealt with through the disciplinary procedure. The latter is a possibility, particularly bearing in mind that these absences appear to be conveniently timed for the employee.

It is extremely important that you categorise whether this is a capability or conduct matter. Both are potentially fair reasons for dismissal but if you get it wrong you may not follow appropriate procedure and ultimately you may not identify the correct reason for dismissal. Employers generally need to take particular care where there is an underlying medical condition as the employee may then be protected by the provisions of the Disability Discrimination Act 1995 (DDA 1995).

It is often difficult to know whether you need a medical report in this type of situation. You should consider this very carefully and discuss it with your employee, even if you are not considering dismissal, before excluding a medical report from your investigations. If the employee has a disability as defined by the DDA and he is dismissed because of his medical condition, your ignorance of his condition will not be a defence and you may find that an Employment Tribunal concludes that he has been unfairly dismissed and/or unlawfully discriminated against on the grounds of his disability.

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A2: It is possible that this employee has a long term medical problem which falls within the definition of a disability under the Disability Discrimination Act 1995. You will not know this for certain until you obtain a medical report. The DDA 1995 states that a person has a disability if s/he has a 'physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities'.

If you treat a person with a disability less favourably than someone who does not have a disability, this will constitute discrimination under the DDA 1995. Dismissing someone because of their illness, for example, would constitute unlawful discrimination under the DDA 1995. In addition, if you fail to make reasonable adjustments to a person's working arrangements or conditions so as not to place him/her at a substantial disadvantage, compared to those who are not disabled, this is also discriminatory.

It is crucial that a medical report be obtained at an early stage to ascertain whether your employee has a disability. Hopefully the report will give a medical prognosis and indicate how long she is likely to be absent due to sickness. Should this employee be dismissed or otherwise treated detrimentally because of her medical condition this may constitute unlawful discrimination under the DDA 1995. The medical report may also suggest reasonable adjustments that can be made to her working conditions. It is possible that by making reasonable adjustments she may be able to return sooner than you think. This is a very complex area of law and you should discuss this with us before taking any further action.

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A3: If you dismiss for this reason then it is unlikely to be a fair reason in law and you will be at risk of successful claims being made against you for unfair dismissal by employees who have been employed for one year or more. Your actions may also be unlawful under the Disability Discrimination Act 1995 (DDA). Finally, if any of these employees are eligible for permanent health insurance benefits you could also be at risk of breach of contract claims for loss of this benefit.

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A4: This is not correct, all employers are subject to the provisions of the Disability Discrimination Act 1995 (DDA) irrespective of how many employees they have.

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A5: You should pay the employee his contractual notice entitlement which must not be less than the statutory minimum. If you fail to give the employee notice of termination in accordance with his contract or the statutory minimum you face a potential claim for wrongful dismissal.

A case decided in April 2005 held that employees are not entitled to claim paid holiday leave during a period of long-term sickness absence (although please note that this decision was appealed to the House of Lords and has been referred to the ECJ for a preliminary ruling). What constitutes ‘long-term’ for this purpose is not entirely clear, although it has been held to include sickness absence for a year or more. In any event, you can provide in your contracts of employment that employees will not accrue holiday in excess of the statutory minimum whilst on sick leave.

Employers who have an express contractual entitlement to do so, may deduct any excess holiday, taken over and above the employee’s accrued entitlement, from the employee's final pay.

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A6: It is often difficult for an employer to know how to address this sensitive issue in the absence of information about the level of alcohol dependency and where the employee himself may not recognise he has a problem. As a starting point, if the employee has alcohol dependency problems then this should be treated as a medical condition and he should be treated like any other employee with a health problem. However, unlike some other employees with a long term medical condition, he will not be protected by the Disability Discrimination Act 1995 unless he has a physical or mental impairment that may be the result of the alcohol abuse.

The senior employee should be consulted about the problem and where possible, a medical report obtained on his condition. If the alcohol abuse is affecting his performance, ACAS recommends that the emphasis should be on encouraging the employee to seek help and treatment. Certainly the aim of any programme of treatment should be to get the employee back to effective performance as quickly as possible.

If the medical report confirms the senior manager does not have an alcohol abuse problem but his work programme is affected by excessive drinking - this may well be a disciplinary matter. A tribunal will be more likely to find a dismissal fair on the grounds of conduct where the company has a clear alcohol and drug abuse policy setting out the penalties for employees who drink during working hours. Even in the absence of such rules, tribunals have accepted that where the alcohol abuse is damaging the employer's reputation, as may be the case if the senior employee is out of the office visiting clients, then a dismissal is more likely to be fair. Any such dismissal should of course only take place following a fair procedure and where the employer has a genuine belief on reasonable grounds, after a reasonable investigation, that the employee was guilty of the misconduct.

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A7: Yes - there could be because the Disability Discrimination Act 1995 (DDA) applies not just to existing employees but also to job applicants.

If this applicant's depression is a disability within the meaning of the DDA, then the Managing Director will need to be careful that he does not, for example, make assumptions about any difficulties she might have because of her medical condition, which might lead to him automatically treating her less favourably than he treats others during the recruitment process. Accordingly, if he rejects this applicant solely because of her depression, without checking her previous attendance record and any impact her condition will have on her ability to do the job (by carrying out a risk assessment and if necessary seeking a medical opinion), this is likely to amount to discrimination under the DDA. Both the employer and the Marketing Director personally could be liable for any such claim.

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A8: There is no upper limit for compensation awards for disability discrimination and generally there are two potential awards that can be made. The first type of award is for direct financial loss covering loss of earnings (which may overlap with an award for a successful unfair dismissal claim; and cannot be awarded twice). The other award is for non-financial loss such as injury to feelings and aggravated damages. Although it is not possible to specify a ‘going rate’, tribunals have recently provided guidance by way of categorising the appropriate level of injury to feelings award which can also be applied to disability discrimination.

The top band is between £15,000 and £25,000 for the most serious cases where there has been a lengthy campaign of discriminatory harassment. The middle band is between £5,000 and £15,000 for other serious cases and the lowest band is for an award between £500 and £5,000 for an isolated or one-off occurrence. These categories are only broad outlines of potential awards. Sometimes tribunals have awarded in excess of the top band, but only extremely rarely will an award be made of less than £500.

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