Q: I have a member of staff who has had a number of unauthorised absences. He is blaming these on ill health, but has not provided any documentation as evidence. What procedures should I follow to deal with this situation and am I within my rights to terminate their contract?
A: Unauthorised absences are when employees are off work without their employer’s permission or where they do not have a statutory or contractual right to be absent from work. Absences such as these cost the UK economy billions of pounds a year and can have an adverse effect on businesses and their employers.
Unauthorised absences are a disciplinary offence, especially where these are stated as such within the contractual terms, but it is important to investigate the absences and speak to the employee before acting, and follow the company’s sickness or absence policy if there is one in place. This step is even more integral to any disciplinary action where the employee is claiming ill health because this could give rise to legal obligations under discrimination laws if the illness could constitute a disability.
First, you should hold a meeting with the employee to discuss his absence, giving him the chance to explain his reasons. While he has not produced any evidence of the reason for his absence, short sickness absences do not require a GP’s note. However, the employee should be completing the company’s self-certification documentation. If his condition could be legally classed as a disability under the Equality Act 2010 then, at this point, you may have a duty to make adjustments to the absence monitoring system to ensure that the situation is not disadvantaging the employee because of any disability he may have.
If this meeting has not resulted in a valid excuse, or you have reason to believe the excuse is not genuine, a disciplinary procedure can be carried out with the employee. A fair procedure would include providing the employee with details of the allegations, that is, failing to attend work without good reason, supplying in advance any supporting evidence such as a record of the absences, holding a disciplinary hearing which would allow him to put forward a defence, ensuring he was given the right to be accompanied and allowing him to appeal against the decision.
Lawful dismissals can be achieved as long as a fair procedure has been carried out. However, if the employee was dismissed, a tribunal would examine all the facts of the case to determine if this was reasonable. Therefore, a dismissal for one day’s unauthorised absence is more likely to be unfair than a case of prolonged or persistent absences without a valid explanation.
Peter Done is managing director of Peninsula
