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April 23, 2021

Question from Angela Hughes ([email protected])

Hi, I am seeking advise on managing absenteeism in the workplace. Your checklist mentions that you can consider taking disciplinary action if the situation does not improve after meeting with the employee and discussing the reasons for the absenteeism, but when I read the section on personal leave, it says ‘you cannot lawfully discipline an employee for exercising their right to take personal/carers leave’. Is this contradicting the absenteeism checklist?
The employee in question is using their accrued personal leave, always notifies his manager in a timely manner and always provides the correct documentary evidence, so is following the companies policies & procedures – but continues to regularly take ‘sick’ days because he says they are an entitlement. Is there anything else we can do?

Hi Angela,

Unfortunately it is beyond the scope of the Help Desk to provide advice on how to deal with your specific employee.  However, we can clarify your query regarding the law in this area.

Despite some overlap between the two concepts, there is no contradiction of the nature you have described.  Indeed, an employer must be careful not to discipline an employee for exercising their workplace right to take personal leave.  Doing so may expose an employer to a number of legal risks, including general protections claims, unfair dismissal claims and unlawful discrimination claims.  However, an employer may take disciplinary action against an employee for absenteeism in certain circumstances, including:

  • where an employee has not complied with evidentiary or reasonable notice requirements for taking leave;
  • where an employee frequently takes personal leave and does not comply with your reasonable request for medical information;
  • where evidence shows that an employee is fit for work but the employee refuses to provide additional evidence of unfitness; or
  • where an employee has exhausted their entitlement to personal leave and has taken more than 3 months’ personal leave in the past 12 months.

Put more simply, an employer cannot discipline an employee because he/she takes personal leave, but may do so if the above circumstance(s) exist when that employee exercises his/her entitlement.

It is also notable to keep in mind that an employer may dismiss an employee if:

  • medical information confirms that the employee can no longer meet the inherent requirements of their role; and
  • there is a lack of evidence indicating that the employee will be fit to return to their duties in the foreseeable future.

If you wish to seek specific advice on your situation, Hannah Dunai, Senior Associate at Holding Redlich is available on a commercial basis at [email protected]

Kind regards,

Matthew Gough

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