What Can I Do If My Employees Are Taking Too Many Sick Days?

As an employer, having employees who take too many days off sick can cause a burden to your business and can result in extra work for others. Whilst employees often have a genuine health problem, sometimes you may have an employee who is taking time off as sick leave when they are healthy and able to work. Dealing with employees who are taking too many days of sick leave can be a challenging task. Whilst you can dismiss your employee due to taking too much time off as sick, the way you go about this is important. For example, you must not discriminate unlawfully, such as when the employee has a disability. Furthermore, you must ensure the dismissal is fair.

This article will explain what a court may consider being too many sick days and what you might want to consider before taking action. It also explains how to dismiss an employee due to taking too many days off sick.

What is Too Many Sick Days?

When an employee takes too many days of sick leave, it is officially known as ‘taking excessive sick leave’. In fact, it is entirely up to you to decide what too many days of sick leave is. There is no legal definition for this. However, you should record the dates and reasons for your employee’s absence. This way, you have a record to base any action.

Initial Considerations

If your employee is taking too many days sick leave, before you take any drastic action, you should consider:

• whether you can support your employees better in their job, including whether you can change their role; and
• if you have given them enough time to get better. 

Furthermore, you must consider whether your employee has a disability. Long term illness can be considered a disability. Where you have an employee with a disability, you must support them with that disability in the workplace. Importantly, if you dismiss an employee due to their disability, you could be unlawfully discriminating against them.

In addition to this, you should consider what your company policy on absences states. For example, examine what reasons are acceptable and the rules on pay for these.

Dismissing an Employee Due to Sickness

You can dismiss your employee if they have taken too many days as sick leave and, as a result, they are incapable of doing their job. However, you must ensure that you follow your procedure and do not discriminate in any way, including discriminating against someone with a disability.

You must carefully consider whether dismissal is appropriate before dismissing an employee due to too many days off sick. Where an employee has been working for you for more than 23 months, and three weeks, they could claim unfair dismissal. You should follow the ACAS Guide to Discipline and Grievance.  

Before dismissing an employee, you must be able to prove that you acted reasonably. Below are some actions you may wish to take to help you prove this before deciding to dismiss your employee due to too many days off work sick.

1. Is Your Employee Medically Fit to Work?

If you are considering dismissal, you should ensure that you are fully aware of your employees’ medical position, involving using your own medical experts to make assessments. Often an employment contract will include a clause on this. 

You may also require the employee to have an examination by an occupational health professional, which would guide you on any reasonable adjustments you could make to help the employee at work. In doing so, you can prove that you have taken steps to attempt to accommodate the employee in the event that the issue persists and you proceed with dismissing them.

2. Provide Written Notice of Dismissal   

If your employee is taking a period of sickness absence, each time they return to work, it is advisable that you have a return to a work meeting. This shows your employee that you are aware of their sick leave and allows you to specify what you expect of them. The latter should be followed up in writing.

However, where you have followed a fair procedure, investigated the employee’s medical fitness, and considered any reasonable adjustments, you can provide your employees with written notice of dismissal and a date for a meeting regarding this.

3. Hold a Meeting

A meeting should be held to allow you and your employee to discuss the issues and see if anything can be done to help the employee regarding their days off sick. It is the employee’s right to have a trade union representative or colleague accompany them to this meeting.

At the meeting, you must demonstrate that it is unreasonable on the resources of your business to continue to hold the employee’s position open any longer and that where any disability is involved, you have made reasonable accommodations for this.

4. Written Notice of Final Decision

You should send your employee a written notice of dismissal stating your reason and the date it will take effect. You should also explain that your employee has a right to appeal your decision should they wish.

Key Takeaways

Employees taking too many days off work sick can be problematic for your business, and you should not ignore it. Whilst usually it will be genuine, and you can make adjustments to help your employee, there are times when it is not. Whilst you can dismiss an employee for taking too many days off sick on the basis that it has made them incapable of carrying out their job, there are procedures you must follow to show that you have been reasonable and fair in doing so.

If you need help with understanding what to do if your employee is taking too many sick days in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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