Probationary periods and sickness absence are not two ingredients that make for a smooth employment relationship.
Whether employers can dismiss during probation due to sickness is a question that arises frequently at Vista HQ, here’s our advice on what employers can and should do in this situation:
Assess the Risk
The first thing we encourage all our clients to think about before making any decisions in this situation is; is there a potential risk of a disability discrimination claim?
To assess this risk, examine the reasons for the absences. When you are in the process of making your enquiries, ensure that you decipher whether there are any links between each condition. If there are, it’s time to refer the employee to occupational health (OH). OH will help you to assess the size of the risk before you make any decisions to dismiss.
What if the Employee is Disabled?
If the employee does have a disability or a potential disability, that’s not to say that you can’t dismiss them.
Before you do make any decisions; ensure that you comply with your duty to make reasonable adjustments and that any unfavourable treatment can be justified as a proportionate means of achieving a legitimate aim.
If it was ‘just a cough’
If you find that actually the employee has only been absent for transient reasons; coughs, colds, toothache for example, then the risk of a claim may be quite low, and you may feel comfortable in dismissing the employee.
Keep records of your enquiries
The final point from us; we would always advise you keep a paper trail of all your enquiries in to the employees’ absence. Doing this ensures that, should you face a challenge, you can ‘show your working out’.
This blog is part of a series focussed on managing ill health. Check out the other frequently asked questions and the answers from our lawyers here.
The content provided in this blog is for illustration purposes only and does not of itself constitute legal advice. It is your responsibility to ensure that these blogs are used in the correct context. Where tailored legal advice or further guidance is required it should be sought from a member of the Vista team.
