Attendance at work is an essential condition of an employee's contract. Therefore, whilst some absence, other than statutory entitlements, may arise, where a clear pattern develops, casual or long term, certified or uncertified, an employer is entitled to review that person’s ability to commit themselves to attending work regularly. Where it is reasonable to show that the employee is unable to make such a commitment, then the employee may be entitled to terminate the employment. When applying such sanctions it is important that the same standards are applied to all employees and that the employer is being consistent.
If an employee has an unacceptable level of casual absenteeism, it is important, in order to justify a dismissal that the employer will be expected to show that the employee had: -
- A continuing pattern of absences over a protracted period,
- That it was reasonable to conclude that the position would not improve substantially or at all,
- The continuation of that level of absenteeism was unacceptable and
- A number of warnings had been given to the employee on the consequences of continuation.
Where an employee is absent from employment for a prolonged period, an employer may be justified in terminating the contract of employment. The considerations, which apply in such cases, include the following:
- The continuing absence poses actual or potential problems for the employer
- There is no reasonable prospect of an early return to work
Note – If there is a conflict of medical evidence, the employer will generally be expected to seek the opinion of a medical specialist.
In examining the medical evidence, the employer will be expected to have regard to the ability of the employee to return to perform the work that he/she is employed to do. If the employee will not be able to do such work, the employer will not be expected to create work for the benefit of the employee.
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