How to deal with sudden ‘sickie’ syndrome

A staggering 164 million working days were lost to sickness last year in Britain according to the CBI.

The good news is that the figure is four million fewer than in 2004. That’s not much consolation however if you’re the employer struggling to maintain business efficiency when faced by a sudden bout of illness by key staff.
Public sector staff took an average of 8.5 days off last year compared with an average of six days taken by private sector workers.
There were wide geographical variations with Yorkshire and Humberside topping the regional league table with 8.9 days lost through sickness per worker in 2005. By contrast, Northern Ireland workers took only 4.7 days off sick.
Most of these absences were of course down to genuine illness and no one expects workers to soldier on when they really are ill. The problem for many employers is telling the genuine from the fake. The CBI report estimated that 13 per cent of last year’s absences were down to people simply ‘throwing sickies’ because they fancied a day off for one reason or another.

It could be to create a long weekend or to add a few days to a holiday. This year of course has presented the extra temptation of the World Cup. Many firms feared a rise in absenteeism, especially during England matches, and took steps to prepare for it.

Most firms try to be reasonable by enabling staff to watch the big games on such special occasions as the World Cup or the European Championships. On the other hand, there’s a business to run and a mass exodus of key workers isn’t conducive to productivity.

The answer has to be a clear cut policy that’s fair to all and easily understood. Some firms have provided TVs and allowed staff to take a few hours off to watch the games on the understanding they make the time up later.

Many can’t be that flexible and so staff have had to use up holiday entitlement to ensure they get time off. In these cases, firms need to ensure that there are clear and fair rules for booking such leave.
If there are likely to be too many requests then employers could use a first come first served basis, or they could get employees to draw lots. People who miss out on one key date could be given preferential treatment for the next.
This approach is likely to go down well with staff as they will see that the employer is at least trying to be fair. Even so, no matter how even handed you try to be there’s a chance that some people will still be tempted to throw the last minute sickie to get their way.
Employers should make sure that every employee knows that such behaviour could be considered a gross misconduct and could lead to dismissal. Even if this is long established practice it is still a good idea to remind staff leading up to and during a major sporting events. Memories can get a little hazy in the face of World Cup fever.
This carrot and stick approach if applied fairly and across the board should get a favourable response from most employees. However, if someone still goes suspiciously sick on a key date then the employer is entitled to respond quickly and, if the evidence supports it, take severe action.
However, care should be taken to first investigate all the facts.
It may be a genuine illness so the employee should be given the opportunity to produce a sick note or some evidence that they really were unwell. If he fails to provide a satisfactory explanation then the employer may be perfectly entitled to dismiss him, only after following the correct disciplinary procedure.
Less serious offences such as sloping off early to watch a game could warrant a verbal or written warning.
Each case should be taken on the evidence and if in doubt it’s advisable to seek legal advice as to what is the best way to proceed.
But the real victory is to prevent it ever coming to that. Get the policy in place, let everyone know where they stand and there shouldn’t be too many problems whether it’s to do with a potential staff exodus during a major sporting event like the World Cup, or employees competing for attractive days off to prolong a bank holiday or extend a Christmas and New Year break.

Sally Laughton is a specialist in the employment department at Andersons Solicitors in Nottingham. Contact slaughton@andersonssolicitors.co.uk or tel: 0115 988 6736.

Does your boss own you 24 hours a day?

Coronation Street’s Craig Charles has been disciplined for alleged misdemeanours in his private life. But shouldn’t what you do in your own time be no one’s business but your own?

Employment lawyer Anthony Kay from Andersons Solicitors in Nottingham examines the uneasy relationship between responsibility to the firm and the right to a private life.

Craig Charles is the latest star to feel the cold wind of disapproval from his bosses for his behaviour away from the workplace. He was suspended from the show for allegedly misusing a Class A drug.

High profile cases like this and thousands of other less publicised examples raise the question of exactly what right does an employer have to dismiss someone for something that happens away from the workplace in the employee’s own time.

Employees might like to feel that what they do in their private life has got nothing to do with their boss but the reality is more complicated. The Employment Rights Act 1996 lists several potentially fair reasons for dismissal and then offers scope for a more general interpretation by saying a person can be dismissed for “some other substantial reason.”

The question then becomes what constitutes a substantial reason but there’s no doubt that it can include a person’s actions outside of work. An obvious and straightforward example would be something that prevents the person carrying out their duties.

If an employee has to drive as part of his work and then loses his licence for drink driving after a night out then that could be grounds for dismissal. The employer might have to explore ways to overcome the difficulty such as the use of public transport or find the employee other duties but if these remedies aren’t available or not practical then the firm could be justified in going ahead with dismissal.

Damaging the firm’s reputation is also likely to result in good grounds for dismissal. A clear cut case might arise if an employee has too much to drink on a Saturday night and then happens to meet an important client. If the employee then insults the client or alternatively starts criticise his own employers then that would clearly damage the firm’s reputation and could lead to dismissal.

Crimes or other misdemeanours committed outside work time are less clear cut. For example, an employee might be convicted of a drugs offence but that would not necessarily damage the firm’s reputation unless the public or the firm’s clients were likely to hear about it. That’s almost certainly going to happen in the case of celebrities who will attract widespread publicity, but it’s less clear cut with ordinary employees.

Unless the employers could show that the firm was likely to be damaged by association with the employee’s actions then it’s unlikely they could proceed with dismissal.

Employment tribunals are also prepared to take into account how the actions of one employee are likely to impact on other members of staff. Many may feel intimidated to be working alongside someone who has been convicted of a serious offence of violence. They may feel uncomfortable alongside a convicted thief or sex offender and a tribunal may well agree that their feelings amount to a justifiable reason for dismissal.

This is not a clear cut area of law because the challenge is always to try to reconcile a person’s right to treat his private life as his own with an employer’s right not to have his business damaged by association with a disgraced employee.

For that reason, each case will always have to be taken individually and the particular circumstances will always have to be examined and carefully assessed.

In the meantime, there remains an uneasy truce between the rights of the employer and the employee. Of course, a firm cannot expect to own its staff and control every little thing they do. On the other hand, the employee cannot simply switch off when he leaves work and imagine he’s free to behave however badly he likes.

Anthony Kay is an Associate Solicitor at Andersons Solicitors in Nottingham. He can be contacted on info@andersonsolicitors.co.uk or tel: 0115 988 6721.

Slim chance for fat workers

I recently lost my job because my employer said I was unable to carry out my duties properly because I was overweight. Can I claim compensation?

Sally Laughton from Andersons Solicitors in Nottingham writes…

It depends on your personal circumstances and whether the firm followed the correct procedures.

There is no specific law in Britain banning discrimination on the grounds of obesity. Nevertheless, firms could still find themselves facing legal action if they discriminate against overweight employees because there is already considerable protection under existing legislation.

The most dramatic change in the last year came with Disability Discrimination Act 2005. It removed the previous requirement that mental impairments had to be clinically well recognised before they could be classed as disabilities. It means that obesity could now be classed as a disability if it can be shown that it is caused by anxiety, depression or perhaps even an eating disorder.

Obese people might also be classed as disabled under the Act if their obesity causes illnesses such as diabetes or heart disease.

In these circumstances an employer would have to make reasonable adjustments to meet the needs of the overweight person as required by the Disability Discrimination Act. If they fail to do so then an employee who feels they’ve been subjected to unfair treatment could bring a case of discrimination on the grounds of disability.

There is, however, an obligation on employees to make sure they are doing everything they can to modify their behaviour so they can carry out their duties properly. For example, if there is no medical reason why an obese person shouldn’t eat more healthily and take more exercise then a tribunal may find that they are not disabled and not entitled to protection under the act.

Employment law might also offer some protection. For example, if an obese employee was bullied or generally treated unfairly he might be entitled to claim constructive dismissal.

In spite of all the potential pitfalls, however, employers are entitled to dismiss employees whose obesity prevents them from doing their job properly. However, firms have to follow the correct procedures. They should first check if there is a genuine medical reason for the obesity which might classify the employee as disabled.

The employee should be offered help to lose weight and given time to do so. He should also be warned at the beginning of the process that failure to lose weight could result in dismissal.
Sally Laughton is a Solicitor within our Employment department at Andersons Solicitors in Nottingham. She can be contacted on slaughton@andersonsolicitors.co.uk or tel: 0115 988 6736
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www.andersonssolicitors.co.uk or e-mail Carly Williams at cwilliams@andersonssolicitors.co.uk.