With the recent Jubilee celebrations and the start of the European Championships 2012, there has been an increased celebratory and “holiday’ atmosphere around the country. Along with the conjunction of broader licensing hours at many pubs and clubs, this appears to have resulted in increased employee and worker absenteeism without appropriate reason or notification.
This is only set to increase further over the summer months with the Olympics just around the corner. Employers need to be prepared and have clear holiday and absence policies in place and to implement these in accordance with law or else risk finding themselves vulnerable to unauthorised absenteeism.
Indeed, we have already seen an increase in enquires from employers with concerns over increased employee absences in recent weeks.
Notwithstanding this, it is important employers are also cautious and seek to balance their actions in accordance with employment law in order to minimise the risks of claims and allegations of unfairness and discrimination.
In terms of ensuring they are best placed to deal with employee absence over the coming weeks, employers should consider the following:
1. Absence and holiday policies
It is advisable to have clear absence and holiday policies. These not only inform employees and workers as to what is expected of them but it ensures they are aware of the potential consequences of non-compliance, which is crucial when seeking to discipline or terminate an employee’s or worker’s employment.
2. Preventative action
Make it clear in advance to employees and workers that unauthorised absences during these periods will be assessed and monitored and employees and workers will be expected to have reasonable explanations for any time-off.
3. Record keeping
Employee and workers attendance should always be recorded. Keeping accurate records of attendance will help the employer identify any absence patterns. This may be imperative in any disciplinary process.
4. Investigating employee absence
Employers have a duty to investigate the reasons behind employee absence as case law has confirmed that a failure to investigate injury or health prior to dismissing an employee will probably make the dismissal unfair. It can also result in the employer inadvertently discriminating against the employee or worker if he or she has a disability. Return to work interviews can also be a fundamental part of the process and a useful tool in identifying any cause for concern or any reasonable adjustment that needs to be made on the employees or workers return to work.
5. Obtaining a medical report
Medical reports are not necessary to be dealing with a “one off’ absence but if there is a wider absence problem then a report (providing you obtain consent) can help to get to the bottom of any underlying issues affecting an employee. Such reports can also confirm whether the employee is classed as “disabled’ within the definition of the Equality Act 2010 which can raise awareness of your legal duty and minimise the risk of a discrimination claim. The report should be discussed with the employee and the employee has a right to see it before it is disclosed to an employer.
6. Contact with the absent employee
An absence policy should clearly state the requirements for an employee of notify the employer of absence and the reason for this.
For employees’ absent long-term, a balance is required between keeping an employee “in the loop’ and pressuring him/her to return to work. You should also try to agree a method of communication with the employee.
7. Deciding on the action required
It is possible to dismiss fairly an employee for either repeated short-term absence or a long-term absence however, this should only be done after an investigation has been carried out which may involve obtaining a medical report and considering whether reasonable adjustments could have been made. It is likely you may need to justify your actions at a later date to avoid or minimise the risk of employment claims and proceedings.
If you require advice or assistance regarding the absence of employees, absence policies or the disciplinary or dismissal or negotiated exit of an employee, please do not hesitate to contact me.
By Victoria Mitchell, Employment Solicitor in Lancashire
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