Dealing with employee sickness during a disciplinary or capability process can be a complex and frustrating situation for leaders, business owners and HR practitioners. Balancing the need to address performance or conduct issues with the obligation to support employees’ health and well-being is essential.
It is not unusual for employees to take time off sick from work during either a disciplinary or performance management process. Often fear of facing the music and possible outcomes can affect an individual’s mental health. Occasionally, an employee may be under the assumption that being off sick may delay the process or indeed stop it altogether. However, this is not the case and employers should not be afraid to continue, albeit being mindful of the following guide.
Initial Steps When an Employee Calls In Sick
An employee handbook or the individual’s contract of employment usually provides information on how an individual reports their sickness absence, including a request for the employee to inform the organisation (usually the line manager) of their expected return to work date. 
If the employee is expected to be off for more seven calendar days, the employee is required to obtain a ‘Statement of Fitness for Work’ from a medical professional so that the employer can confirm the legitimacy and duration of the sickness absence, and meet the requirements of any statutory sick payments.
The employer should then consider the nature of the sickness before deciding upon next steps. Is it short-term or long-term? Is it related to the stress of the disciplinary process? Understanding these factors will help in determining the appropriate course of action and whether any adjustments could be made to support the employee to return to work.
For example, if it is stress related (not caused by the disciplinary or capacity process), could temporary reduced hours help? Or is this an upset stomach which is likely to resolve itself, so the employee can return within a day or two? If so, we would advise you to reschedule the disciplinary or capability hearing for their return – remembering they should have a minimum amount of working time (usually defined in your employee handbook) to review any evidence you have shared with them. You have no obligation to rearrange this meeting more than once, and when you confirm the new date and time, you should include wording along the lines of – if you fail to attend a decision will be made in your absence.
Managing Short-Term Sickness
In cases of short-term absences, for example, a stomach bug, an employer should consider pausing the disciplinary process, as a fair and reasonable approach. The employer should document all communication and advise the employee that the disciplinary or performance management process will continue on their return to work.
Once the employee returns to work, a return-to-work meeting should be held with their line manager to discuss their health, update on any work related news and any support they might need to resume their duties. They should also confirm that the disciplinary or capability process will continue, and including a reminder of any relevant information, such as objectives already set as part of any performance improvement plan or formal meetings scheduled for hearings.
Handling Long-Term Sickness
For long-term sickness, a more nuanced approach is required.
If the employee advises that they are suffering with a medical condition which could be classed as a disability, for example depression, that it is severely affecting their day-to-day life, an Occupational Health Assessment is strongly advised to understand the employee’s health condition and its impact on their ability to participate in the disciplinary process.
Questions you might ask the Occupational Health Adviser should at a minimum cover two things:
- Whether the condition is long-term (expected to last twelve months’ or more) and have a substantial impact on their day-to-day life. The answers to those questions will help you understand whether the health condition constitutes a disability and therefore whether the employee has additional protections under the Equality Act 2010.
- Whether the employee is fit to participate in the disciplinary or capability process while absent, for example holding meetings remotely, or providing written evidence. We have experience of numerous cases where this enabled the employer to conclude the formal process, issue a warning (for example) and simply the ‘closure’ around the process alleviated some of the causes for absences, allowing the employee to return to work.
While the employee is absent, the employer should maintain reasonable open and supportive communication with the employee (as part of your duty of care) to let them know that their health is important and that the organisation is willing to make some adjustments to support them. The line manager could agree weekly ‘check-in’ dates with the employee to offer support and keep them updated about any changes happening within the organisation during this period, making the return-to-work process for the employee easier.
Reasonable Adjustments
Based on the occupational health report, consider making reasonable adjustments. A good occupational health report will consider what these may look like for your employee. Examples could be extending deadlines, altering the format of meetings, or providing additional support from their line manager for example, more frequent one-to-ones.
Remember, how a condition affects one person could be completely different from how it affects another – is important to try and remove any personal experience, emotion or bias from this process.
Sick Pay Entitlements
Payment for sickness absence should be made in accordance with the employee’s contract. For organisations offering enhanced sick pay, this is normally capped and a good HR Information System would provide information on how many days an employee has been off sick to determine whether it is paid at the statutory or enhanced rate. 
Balancing Fairness and Procedural Integrity
Maintaining the integrity of the disciplinary process while being fair to the employee is crucial.
Here are some key considerations:
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- Ensure the employee has fair notice of any disciplinary meetings or actions. This includes providing them with the necessary documentation and time to prepare.
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- Allow the employee to be accompanied by a trade union representative or colleague during meetings. This is a legal right and ensures the employee feels supported.
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- Apply your disciplinary procedures consistently to all employees. This prevents claims of unfair treatment or discrimination.
Dealing with Potential Complications
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- If the employee claims that the disciplinary process is causing or exacerbating their stress, take this seriously. Consider pausing the process until you have sought advice from occupational health or an HR consultant.
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- In very rare cases a medical professionals may advise the organisation that the employee is unfit to participate in the disciplinary process, respect this advice. Forcing participation could lead to claims of unfair dismissal or discrimination. This is the point where you may need to choose between your appetite to for risk and settlement agreement.
Dealing with the Individual
All cases need to be considered individually, and on their own merits. There is rarely a one size fits all approach here.
In one organisation we have advised on a case where an employee became seriously ill and was in intensive care. Our advice was to wait until they were out of intensive care before taking decisions on the way forward – and then write to the specialist for information on their prognosis (so we understood any impacts on their longer term employment) and ability to participate on the process remotely so we could bring the process to a close quickly, thus allowing the individual to recuperate without further worry.
In another organisation we have advised on a case where an employee had been invited to a disciplinary meeting relating to bullying. The individual called in sick the following day with stress-related symptoms. We noted the employee’s short length of service and advised the organisation to carry out a short-term dismissal in their absence as they had not yet acquired their employment right to claim unfair dismissal.
Final Thoughts
Dealing with an employee falls sick during a disciplinary or capability process requires a careful balance of fairness, legal compliance and compassion. Remember, the goal is not only to address the disciplinary / capability issue but also to support the employee’s health and well-being so that their behaviour and performance improves to an acceptable level.
We realise this is a tricky issue and are on hand to support you in managing your team when these issues arise. Call today to find out how we could work together.
By Amy Slatter