Understanding the complexity of employment law relating to sick leave

Whether business owners and their human representatives like it or not, they need to ensure that they are compliant with employment law when considering taking disciplinary action or dismissing team members for what they perceive to be unacceptable levels of sick leave.

Regardless of personal opinions on the matter, what they might consider to be grounds for dismissal might not be considered acceptable when viewed through the eyes of an employment tribunal. This has recently proved to be the case for rail company Southeastern, whose dismissal of train driver Darrin Thomas has cost them £28,000 in compensation, awarded by an employment tribunal in favour of Mr Thomas.

Due to suffering from both asthma and eczema, Darrin Thomas notched up 134 sick days off work during a 22 month period from January 2009 – November 2010, equating to one day off in four. This resulted in him being sacked by Southeastern for poor attendance. Despite the fact that his absences from work were backed up by doctor’s notes, only a couple of them cited asthma as the reason for him being off sick. Upon his returns from sick leave, his was found to be fit and well enough to perform his train driving duties. He never discussed his asthmatic condition with his employer and only brought it to their attention when instigating his unfair dismissal claim.

Despite Mr Thomas’s failure to discuss his asthma with Southeastern, and the agreement by the employment tribunal that he would have eventually had to resign his position due to his persistent ill health, it upheld his claim on grounds of disability discrimination.

At NorthgateArinso, we provide employment law and human resources services to many different types of businesses to help them understand compliance relating to sick leave and dismissal, and avoid employment tribunal cases.

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