SICKNESS ABSENCE - 18.11.2011

Lengthy sickness absence during probation

Not able to assess them

In a nutshell, a well-managed probation period allows you to assess a new hire’s ability to carry out their role. They usually operate over three or six months, but can be longer or shorter if you wish. But what would your options be if the individual ends up spending much of their probation period on sick leave and you were unable to confirm their suitability for the post?

What’s causing the absence?

Before deciding on how to deal with this problem, your first task should be to categorise the employee’s sickness absence. That means identifying whether it’s a misconduct or capability issue. To qualify as misconduct, you’ll need firm evidence that the absences weren’t down to genuine sickness. For example, continual “sickies” with no medically confirmed underlying cause indicate there’s a potential conduct problem. However, should the absences be due to an ongoing medical condition, it becomes a capability issue.

Option 1 - cut your losses

Depending on how far through the probationary period the employee is, one choice is to sit tight until the end. If they then fail to return to work without a genuine reason, or you remain sceptical about the reasons for their absence(s) (or the duration), you can cut your losses and dismiss. In most cases, this shouldn’t create a problem because unfair dismissal rights don’t currently accrue until an employee has one year’s continuous service. However, don’t forget that if the absence is because of, or related to, a disability, any dismissal would be automatically unfair.

Option 2 - extend probation

Where the sickness absence is clearly genuine, e.g. it’s due to an operation or a disability, or the reasons for it are in doubt, your other - and probably far safer - option is to extend the probationary period (see The next step). The fairest way to do this is by adding on a period that’s equal to half of their original probation. So if that had been set at three months, you would tack a further six weeks on to the end of it.

Tip 1. In order to do this,you’ll need to have retained the contractual right at the outset of their employment. Don’t worry, this is easy. Simply insert the following into your offer letters and employment contracts. “Whilst your standard probation period is ..........(insert period), the Company retains the right to extend it further. This will happen if you have a high level of absence, including sickness absence, during your probation period which makes it difficult to assess your overall performance.”

Tip 2. Don’t extend the probation period so far that you accidentally allow the employee to accrue unfair dismissal rights, i.e. by taking their service beyond twelve months.

Tip 3. Finally, although the ACAS Code Practice on Discipline and Grievance Procedures doesn’t apply to short-serving employees, you must still act reasonably. That means investigating the reason for their lack of capability or misconduct carefully and giving them an opportunity to improve before you go for dismissal.

For a free sample extension of probationary period letter, visit http://personnel.indicator.co.uk(PS 13.21.04).