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Document updated/added on 12.04.2019

Topic: Sickness absence

Warning/final warning of unsatisfactory attendance
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Warning/final warning of unsatisfactory attendance

Warning/final warning of unsatisfactory attendance

Following an absence management meeting, if you want to formally warn the employee about their unsatisfactory attendance, use our warning letter. It can also be adapted for use as a final warning.

Fair warning

The warning should set out the employee’s unsatisfactory sickness absence record and what improvements in their attendance levels are required (making sure you’re setting realistic targets), provide a reasonable timescale for improvement, advise them that you will now have regular reviews to assess their attendance and confirm what the likely consequences will be if there is no, or insufficient, improvement within the review period, i.e. that it’s likely to lead to a final warning or, if the employee is already on a final warning, their being dismissed. What is a reasonable period to allow for an employee to improve their attendance to the levels required between warnings will vary according to the circumstances of the case, how long the employee has been employed and their level of seniority, but do aim for an improvement period of at least three months. Finally, your warning should allow a right of appeal. We’ve drafted our Warning/Final Warning of Unsatisfactory Attendance so that it can be used at both the first and second stages of the Attendance Procedure.

Regular reviews

Thereafter, carry out informal reviews with the employee at least monthly. Your informal reviews should follow the same basic format as the absence management meeting, although they will not be as formal. They allow you to discuss the employee’s sickness absence record on an ongoing basis, thus giving them every opportunity to improve it.

Formal procedure

However, if the employee fails to sufficiently improve within the review period you’ve set, or they do improve within the review period but then their attendance deteriorates again within the validity period of the warning, you would then need to move to the next stage of the attendance procedure.

Disability-related sickness absence

An employee whose intermittent sickness absence is the result of a disability may make a claim for disability discrimination under the Equality Act 2010 if you’ve issued them with a warning for unsatisfactory attendance (or dismissed them). They could either claim that you’ve failed to make reasonable adjustments for their disability, e.g. by not adjusting the trigger points for taking action under your attendance procedure, or that issuing a warning (or dismissing them) for their disability-related absence is unlawful discrimination arising from disability, in which case you’d then need to justify it as a proportionate means of achieving a legitimate aim. Ensuring adequate staff attendance levels is a legitimate aim. However, issuing a warning may not be a proportionate means of achieving it if there’s nothing the employee can do to prevent their absences. Where a medical report indicates that a disabled employee is unlikely to improve their attendance in future because of the ongoing nature of their medical condition, it’s probably better to treat the case as one of long-term illness instead, rather than blindly following your attendance procedure for persistent short-term sickness absences.

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