Written by: Cally Worden
Every one gets poorly sometimes, but it can be a worry when you have to take time off work. How will your boss react and what rights do you each have? Every employment contract is different, so the complete answer will always depend on your individual circumstances, but there are some general laws designed to protect workers from unscrupulous employers who may try to use a few days off as an excuse to give you your marching orders. Beware though, as these same laws offer protection to employers too, otherwise we’d all be lounging around in bed at the first sign of a sniffle. Here’s what you need to know:
Unemployment Rights Act 1996
This piece of legislation is important. It says that employers must have a fair reason for dismissing someone. That reason could be anything to do with your conduct at work, your ability to perform your duties, or any other substantial reason. The law is open to quite wide interpretation on this point, so it pays to be mindful of your specific work responsibilities and how they could be seen to be affected when you are off sick.
For example – if your role is in sales and includes maintaining consistent and regular contact with people, and those relationships suffer as a result of you being off, then an employer could argue that persistent absence affects your ability to do your job properly.
Thankfully employers cannot just fire you willy-nilly. They are under an obligation to act fairly in their assessment of the situation, and must be seen to act reasonably in respect of their decision. It would normally be expected that the employer would have a procedure in place to deal with an issue of absence. This procedure could play out something like this:
- Offer a verbal warning that the absences are unacceptable
- Give a written warning to the employee that their level of absence is having a detrimental effect on their work
- Actively ascertain if the illness causing the absence is work related, and act to improve conditions if this is found to be the case
- Follow internal disciplinary procedures correctly – in some organisations there has to be a series of verbal and written warnings issued before a dismissal can occur, and employers would need to demonstrate that these procedures had been followed
If an employee feels they have been unfairly dismissed then it is possible to appeal, via an Employment Tribunal. The tribunal would consider many factors in deciding if the dismissal was lawful, including time at the company, how other employees have been treated in similar circumstances, whether the illness is work related, and so on.
The Equality Act of 2010 offers additional protection to those employees who have a recognised disability that is considered to have an adverse effect in the long-term on their ability to engage in normal day-to-day activities. In this case, absence through sickness that is related to the disability would be more likely to be considered reasonable, and the employee is better protected.
The act of carrying a baby can give rise to all sorts of pregnancy related illnesses. It is unlawful to dismiss a pregnant woman because of the effects of illness arising from her pregnancy, so protection in this instance is almost assured. In law, pregnant women are offered a period of protection that lasts from when their pregnancy begins, until the end of their maternity leave.
The law exists to protect both employers and employees, and we all know that in reality an employer can make life difficult in subtle ways for employees that they feel are taking unreasonable amounts of sick leave. A sensible approach is required, and if you find yourself in the position where you are genuinely unable to attend work due to regular bouts of illness, then talking to your employer directly in the first instance may be the best way to avoid any issues arising. If they start to make a problem for you, then get professional advice, and be sure to log every instance of absence, sickness, doctor’s visits and so on, to help defend your position.