When managing sickness absence, employers have to balance the duty to support and ensure the employee is supported and receives what they are entitled to, while ensuring the needs of their organisation are protected.
In cases of long term sickness absence, they may come a point when the employer has to consider if the situation is no longer tenable, and that disciplinary action may be appropriate. Employers and line managers have to tread carefully here. This is because, among other things, too many sick days may be a capability rather than a disciplinary issue, unless absences are unauthorised.
Yet the reality is, a decision must be made as to when it is reasonable to take any action, which could include a decision to dismiss, either for persistent short-term or long-term sick leave.
In this guide, we answer key questions about sickness absence, such as how many sick days should be allowed before taking disciplinary action. We also look at the rules relating to sick leave, including employee entitlements to time off work and paid leave, and the respective obligations of the employer and employee around sickness absence. Finally, we set out best practice advice on the procedure to be followed when instigating disciplinary or capability proceedings, having regard to the consequences of dismissing an employee because of too many sick days.
How much sickness absence is acceptable?
While absence through either illness or injury is to be expected when running a business, it can quickly become costly and inconvenient when an employee is off sick frequently or for a long period.
If an employee is repeatedly absent or has a long-term condition that means they are no longer able to do their job, or do their role to the required standard, you may be considering issuing a written warning or even bringing their employment to an end. This is because there is only a limited amount of time that any business can survive, or function effectively, with staff on sick leave.
If you are in this situation, you might be wondering if there are minimum number of days that an employee should be off sick before a disciplinary or dismissal can take place. However, in answer to the question: “How many sick days before disciplinary?” — there is no right or wrong response. It will depend on the circumstances involved. Many employers will already have in place a sickness absence policy in which an absence review procedure will be triggered after a certain number of days sick leave. Having trigger points to keep track of attendance records is perfectly acceptable, provided each case is dealt with on its own facts.
When it comes to short-term absences, there is no legal upper limit to the number of sick days employees can take, where you are free to set your own threshold for what you would class as excessive over a set period. You could determine an admissible amount of absence based on the national average of sick days per year in the UK, around 6-7 days or, alternatively, base it on the average in your industry sector. It may be that you already record sick leave data to help monitor absenteeism in the workplace, where you will be able to use this to set your own average. If the number of days sick leave taken by an employee exceeds what you consider to be acceptable, you can go on to explore the reasons behind these absences.
In cases of prolonged sickness absence, there is no maximum period that an employee can be signed off work sick, as much will depend on the nature of their illness or injury and the prognosis for their recovery. Equally, there is no minimum period that an employer should wait before instigating capability proceedings. Again, this will depend on whether or not the employee is likely to fully recover and, if so, the potential timeframe involved, as well as the resources available to the employer to keep the employee’s job open for them.
In many organisations, an employee will be classed as on long-term sick leave after 4 weeks. It is typically at this point that an absence review meeting will be held to assess the employee’s long-term prognosis, after which a capability procedure may be triggered. However, there should usually be a number of absence review meetings before instigating formal capability proceedings with a view to terminating the employee’s contract of employment.
What are the rules on sickness absence?
There are various rules that must be taken into account when it comes to managing sickness absence, from the employee’s entitlement to time off work to their potential entitlement to sick pay. There are also other rules relating to the obligations on both the employer and employee during any period of sick leave, and even on the employee’s return to work.
By understanding how to fairly handle sickness absence in the workplace, the employer should be able to show a system of reasonable responses throughout any period of sick leave, not least in the context of any allegations of unfairness if this results in dismissal.
First and foremost, if an employee is unwell, they are entitled to time off work. This means that unless there is clear evidence of malingering, the employee should be supported, and not reprimanded, for any sickness absence. Equally, if an employee is absent from work for a period of 7 days or less, they should not be asked to provide medical proof of their ill health. This is because it is only a legal requirement to provide a statement of their fitness for work if an employee has been absent from work for more than 7 consecutive calendar days.
However, in cases where an employee is off work for less than 7 days, you are entitled to ask them to self-certify in writing the reason for their absence on their return to work. In this way, you can monitor an employee’s absence and the reasons for this, where this information may be relied upon in due course, especially when it comes to persistent short-term sick leave. You could also put in place a sickness absence policy requiring absent employees to phone in each day, as well as conducting return-to-work interviews, not only to verify the self-certified reasons provided by the employee but to ensure that there are no underlying issues.
If the employee is absent from work for less than 4 days, they will not be entitled to statutory sick pay (SSP), although you may have an occupational sick pay scheme in place that makes provision for pay from day one. If the employee is only entitled to SSP, this is payable at a rate of £99.35 for a period of up to 28 weeks (as at the time of writing), starting from the fourth day of any sick leave.
What procedure should be followed for sickness absence?
In the context of persistent short-term absences, where there is a clear pattern of an employee pulling sickies, for example, regularly taking Mondays off work, you may take the view that the employee is malingering. In these circumstances, sick leave should be treated as a misconduct matter for which disciplinary action may be taken for unauthorised absences.
The situation becomes more complex when it comes to legitimate sick leave, either on a recurring or long-term basis. In this context, taking disciplinary action is likely to be perceived as unnecessarily punitive, rather than supportive. Where it is clear that any absences are genuine, but the employee is unlikely to be unable to return to work, either for a long period of time or at all, or repeated absences seem likely, it is better to instigate capability proceedings.
However, in any given scenario, the most important thing is to ensure that your procedures are fair. If you decide to instigate a disciplinary procedure, you must follow the guidance set out within the ACAS Code of Practice on disciplinary and grievance procedures. This sets the minimum standard of fairness that an employer should follow when taking disciplinary action against an employee. This is the case, even if it is clear that an employee is potentially guilty of gross misconduct, for example, pulling a sickie to go on holiday. In line with the guidance given under the Code of Practice, any disciplinary matter must be fully and promptly investigated, and the employee given the opportunity to attend a disciplinary hearing to put their case before any decision is made. The employee can be accompanied at that hearing on reasonable request. They also have the right to a written decision and to appeal that decision.
In the context of capability proceedings, the procedure must again be full and fair, broadly mirroring the rights given to employees in any disciplinary matter. However, the capability procedure must also be used to explore what steps can be taken to support the employee’s return to work or to prevent recurring absences, unless such matters have already been fully explored during any absence review meeting(s). The employee must also be given sufficient time to recover, including completing any treatment plan, where at all possible, and the opportunity to prove that they are still capable of performing their job role.
If the employee is too unwell to attend a capability hearing at work, you should think about postponing the hearing or holding the hearing somewhere more convenient to the employee, such as at their home address, a neutral location or even remotely. You could also suggest that the employee supply written evidence, rather than attending any hearing in person, although it is often better to wait until the employee is well enough to attend before going ahead.
Before going ahead with any capability hearing, ideally a report should be obtained from an occupational health professional. In most cases, especially where you are considering the possibility of dismissal, you will need an independent medical opinion as to the nature and extent of the employee’s condition, the likely prognosis and any treatment that may assist in their recovery. You should also have regard to any recommendations made as to what steps can be taken to support the employee’s return to work or help with their attendance levels.
Can an employee be dismissed for being off sick?
When deciding to dismiss an employee, you must make sure that you have a justifiable reason for the dismissal. You must also ensure that the decision to dismiss is reasonable in all the circumstances and that you follow a fair procedure, especially if any employee has worked for you for 2 or more years, as this will entitle them to claim unfair dismissal.
There are five potentially fair reasons for dismissal, including conduct, capability, redundancy, illegality and some other substantial reason. If an employee is found guilty of malingering, this could amount to misconduct for which dismissal may be justified, depending on the seriousness of the matter. Equally, even in the case of legitimate sick leave, either short or long-term, the employee may be fairly dismissed on grounds of capability if they are no longer capable of performing their job role or meeting the required level of attendance.
However, to justify a decision to dismiss an employee for too many sick days, you would not only need to show that you had followed a full and fair procedure — for example, by providing a series of formal warning about attendance levels and the risk of dismissal in the case of persistent short-term absences — but that the dismissal was reasonable in the circumstances.
In a number of sick leave cases, an employee may be suffering from a long-term physical or mental impairment amounting to a ‘disability’ within the meaning of the Equality Act 2010. By dismissing a disabled employee, this could amount to both automatically unfair dismissal and disability discrimination, for which there is no qualifying service requirement.
Employers are also under a statutory duty to make reasonable adjustments to support an employee’s return to work, or prevent recurring absences, when suffering from a disability. This could include a phased return, amended duties, altered hours or workplace adaptations. It may also be advisable to record disability-related absence separately from other sickness absences. Any failure to take these or any other steps to remove any disadvantage suffered by an employee by reason of their disability could again amount to unlawful discrimination.
Dismissal on the grounds of ill-health capability should therefore only ever be used as a measure of last resort. You must first consider every step that can reasonably be taken to support the employee in the workplace, ideally in consultation with the employee and any health professionals, otherwise risk your chances, and reputation, before the tribunal.
DavidsonMorris’ employment law specialists support employers with all aspects of sickness absence, disciplinaries and dismissals. Through Triple A, we provide expert employment law advice for a fixed monthly fee. For advice on a specific query relating to sickness absence, or for more information about Triple A, contact us.
Sickness absence & disciplinary action FAQs
How long can you stay on the sick before dismissal?
There is no legal upper limit to how long you can be off sick before any disciplinary and dismissal action will be taken against you. This will depend on the terms of any sickness absence policy and the facts involved.
Can you be disciplined for being sick UK?
In the UK, it is possible to be disciplined for being off sick, for example, if the employer suspects malingering, or even where legitimate but persistent absences are causing problems for the business, although this is more a capability issue.
Can I get a disciplinary for being sick?
Persistent short-term and long-term sick leave should usually be treated by an employer as a capability issue rather than as a disciplinary matter, although you may guilty of misconduct if any absence is found not to be genuine.
Last updated: 6 July 2022