Ask the expert: Mysterious absences and dismissal

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If an employee is regularly absent and seems to have very little interest in convincing her employer that her illnesses are genuine, what steps should the company take? Martin Brewer, partner and employment law specialist at Mills & Reeve, and Esther Smith, partner at Thomas Eggar, advise.

The question:
We are a small company (six employees) and we have recently recruited a new member of staff. In the first two weeks we gave the employee two days compassionate leave (paid) to attend to her sick grandfather.

Approximately two weeks ago she sent our company a text saying that felt sick and wasn't coming into work. This went on for a week. This week her texts have ranged from being tired, to sickness, to something more serious (potential lump on her ovaries).

Today she hasn't even bothered to text or call into the office.

We are only a small company with a large client base and we need to serve these clients. We have called her (and recently written) and left messages to call and let us know when she is likely to return to work and what we can do to help. We have asked for a Docs Certificate and we haven't had anything!

We have no response at all. It's very difficult to deal with these situations if we cannot speak apart from the odd random text message.

This employee has only being with us for 6 weeks and quite frankly our gut reaction is to give her a weeks notice bearing in mind all of the above. She has never aired any grievances.

Any advice as to what to do? As I say we are only small and cannot really have the burden of paying someone whilst they are absent?

Chris James

Legal advice:

Esther Smith, partner, Thomas Eggar

As with most situations there is probably a pragmatic answer and a legal answer to this situation! The pragmatic answer would be to simply terminate the employee's employment. Technically, unless you have issued her with a contract that says something different, she is only entitled to one week's notice and I suggest you pay her in lieu of this notice, but don't pay her for the period she has been absent without authority. She may be entitled to statutory sick pay but without a doctor's certificate you cannot process this.

The more cautious, legal answer would be to seek to contact her again by way of telephone and letter and invite her to a disciplinary hearing making it clear that the issues you wish to discuss with her are her failure to attend for work and her failure to comply with your requirements regarding notification of absence. Your letter should make it clear that dismissal may be an option and that if she does not get in touch or attend the hearing a decision may be made without the benefit of her input. The reason I say this is that there is an outside chance that she may seek to claim that her dismissal is in some way linked to a disability. This seems unlikely given the information available to date, but you can never be too cautious with health issues. By going through the disciplinary process before dismissing it helps to substantiate that we are not dismissing due to the fact that she is ill, but due to the fact that she has not complied with company rules etc. This should help defend a disability discrimination claim should it appear.

I do hope this helps.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

Chris, it seems to me that your gut reaction is right. Under the contract of employment you can dismiss this lady on notice. Your reason would be failing to keep the company informed about absence, poor attendance and a pretty poor attitude arguably leading to a breakdown in trust and confidence.

In the absence of any claim rooted in discrimination (and your question doesn't suggest there is any) and in the absence of one year's service, the only claim available (assuming you don't breach the contract) is unfair dismissal for one of the reasons where a years' service isn't necessary. These include thing such as dismissing an employee for raising health and safety concerns, for asserting statutory rights etc. The facts as you have described them don't suggest this lady can bring such a claim.

Martin can be contacted at: [email protected]

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