Under par performance

13 July, 2007
As the laws on sick leave become more comprehensive, understanding your rights as an employer is vital, says Ben Hopps
Page 15 
Employees on long-term sick leave are not good for business. Employers need to be able to rely on their staff being fit enough to carry out their duties.
So it is important to have a sickness policy in place that 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 and is helpful in assessing whether any underlying cause of frequent absences are the result of a disability. If so, you will need to consider your obligations under the Disability Discrimination Act 1995.anti-work attitudeIf 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 include:? taking reasonable steps to ensure the safety and security of your workers? preventing 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 substantial claim for damages. 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 or she 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 that 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 you. Here you would have to show that you had done everything possible to assist the employee to return to work.Possible consequences of getting this process wrong range from failure to spot a problem, leading to a claim for discrimination under the Protection From Harassment Act to dismissing a newly emp-loyed member of staff and facing a minor claim for breach of contract.compensatory payThe good news is that the emp-loyees' compensatory award in respect of salary during the notice period may be reduced if he or she would have been off sick for the notice period. In these circumstances, the employee may only be entitled to statutory or contractual sick pay instead of their full salary for the notice period.l Ben Hopps is a partner specialising in litigation at Sykes Anderson



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