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Playing the sick card

PUBLISHED: 21:10 28 July 2012 | UPDATED: 21:40 20 February 2013

Playing the sick card

Playing the sick card

An insight by Nigel Tillott, Managing Partner, Gloucester, and Head of Employment Law at Davies and Partners

An insight by Nigel Tillott, Managing Partner, Gloucester, and Head of Employment Law at Davies and Partners

Playing the sick card

Most employers will be familiar with this scenario an employee is under performing, accused of misconduct or facing potential redundancy. He or she then goes off sick probably receives full pay based on the companys sick pay scheme and claims not to be fit enough to attend any meeting.

Employers may adopt a proactive approach. For example, sensitively worded sickness policies and procedures could be used to create an understanding amongst employees that should they go off sick in such circumstances the only pay will be SSP, and of course no SSP is due during the first three days of absence.

In the recent case of Bridgeman v Family Mosaic Housing Association a tribunal was asked to consider whether a dismissal in the absence of a sick employee was unfair. Ms Bridgeman worked in a responsible role supporting vulnerable adults and had been the subject of a final written warning following a serious incident. There remained concerns about her performance particularly in relation to risk assessments involving vulnerable adults for whom she was responsible.

A Senior Manager prepared a report in which she concluded that there was a risk of a serious incident due to lack of competency. In the meantime Mrs Bridgeman was off work with a virus. Whilst still off sick she was invited to a disciplinary hearing. She informed the organisation that she was trying to get another sick note to cover continuing absence but didnt actually provide one. On the day of the hearing she telephoned to say that she wasnt well enough to attend. The decision was made to go ahead with the hearing in her absence on the basis that she was being unco-operative and the organisation did not see a reason to postpone the hearing. At the hearing the view was taken that she should be dismissed and that if Ms Bridgeman had been present the result would have been the same.

The employment tribunal took the view that the organisation had genuine and reasonable grounds for dismissal but that it failed to undertake a proper balance between the needs of the association and Ms Bridgemans own rights. The decision to go ahead with the hearing on the first occasion when Ms Bridgeman couldnt attend was too hasty and therefore the dismissal was unfair.

The tribunal looked at the ACAS Code of Practice on disciplinary and grievance which suggests that where an employee is persistently unable or unwilling to attend a disciplinary hearing without good cause the employer should make a decision on the evidence available. The tribunal decided that the employer didnt have sufficient information to decide whether or not Ms Bridgeman was abusing the system and holding a hearing was very important to the integrity of the process. It also took account of the size of the employer in coming to its conclusion the organisation was sizeable.

So what can be learned from the case:

  • Employers should be slow to proceed following a first failure to attend.

  • One safe option is to obtain independent

  • medical advice as to the employees fitness to attend a hearing (as opposed to attend at normal work). Having a responsive Occupational Health Physician available who understands the needs of the business can be invaluable.

  • The impact of delaying the hearing should be considered. Where it would

  • have an impact on others for example in a redundancy situation or if there are serious financial consequences for the organisation it will be easier to justify proceeding than in other circumstances.

  • The larger the organisation the more carefully it will be expected to move.

Beginning to feel like hard work? Some good news in the case referred to, the tribunal believed that the employer had good reasons to dismiss, which would not have been affected by the employees attendance at the meeting and it reduced the compensatory award to zero.

As with most things it is a question of taking each situation on its merits, weighing up the risks and proceeding accordingly.

Davies and Partners Solicitors
Rowan House, Barnett Way, Barnwood,
Gloucester, GL4 3RT
Tel: 01452 612345
Email: info@daviesandpartners.com

Visitors parking available

Offices also in Bristol and Birmingham


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