As an employer, you need to be able to rely on your staff being fit enough to carry out their responsibilities.

It is important to have a sickness policy in place which allows you to be involved in dealing with your employee’s illness. Implementing return interviews for employees who have been off sick can help identify and address any ongoing problems. From an employer’s perspective, it is also helpful to assess whether any underlying cause of frequent absences may be as a result of a disability. You will need to consider your obligations under the Disability Discrimination Act 1995.

Malingerers or victims?

If you come to the conclusion that your employee is malingering, you may need to investigate further. It may be that your employee is being seriously bullied or intimidated or that there is some psychological complaint or stress affecting your employee’s performance.

If there is any suggestion that your employee is being bullied, you need to take steps to protect yourself from a potential claim. Your basic duties as employer include:

• A duty to take reasonable steps to ensure the safety and security of your workers

• A duty to prevent discrimination on any of the prohibited grounds

• Vicarious liability for the actions of your employees including actions which may amount to harassment under the Protection From Harassment Act 1997

A breach of any one of these duties could potentially give rise to a claim against you. If the employee is in danger of developing a psychiatric condition which may affect their ability to work for a prolonged period as a result of a continuing failure to address the situation, you could be facing a very substantial claim for damages.

Dealing with sickness absence

The general advice in dealing with sickness absence is to treat it as a capability rather than a conduct issue. An employee’s inability to perform the job he is paid to do is a potentially fair reason for dismissal. If you were considering dismissal, you would need to follow a fair procedure as well and the decision to dismiss should be one which a reasonable employer would take in all the circumstances.

Recent case law confirms that it is still possible to dismiss fairly on the basis of capability, even when the employee’s illness has been caused by the employer.

Here you would have to show that you had done everything possible to assist the employee to return to work.

Getting it wrong

There are several possible consequences of getting this process wrong; these range from failure to spot a problem leading to a claim for discrimination under the Protection From Harassment Act (could be very bad) to dismissing a newly employed member of staff and facing a fairly minor claim for breach of contract (which is unlikely to be catastrophic).

The good news, according to a recent case, is that the employees’ compensatory award in respect of salary during the notice period may be reduced if the employee would have been off sick for the notice period.

In these circumstances, the employee may only be entitled to statutory or contractual sick pay as applicable instead of their full salary for the notice period.

In summary…

As an employer, no-one expects you to be a charity and maintain employees who cannot or will not do their job. There is, however, an obligation on you to ensure that you behave fairly and reasonably and do not discriminate.

Ben Hopps is a partner specialising in litigation at Sykes Anderson LLP