Employment Update for Small Businesses
September 2017

Dear Visitor,

This month, we are hiring! Yes, that’s right I am finally taking a deep breath and employing an assistant (who would employ staff, hey?!) If you know anyone who you think may be interested, please share this with them.

Also this month, we consider some of the pitfalls that can arise when dealing with short serving staff who have very high absence levels. Whilst that can often result in a fair termination of employment, it is not always completely risk-free.

Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.

Please forward this email to any of your contacts who might find it of benefit.

Peter Etherington
Tel: 01664 668164


New employees with high absence levels: can they be removed?

Employers need to be wary of breaching statutory rights to take time off

I am often contacted by clients who are frustrated by new employees who take lots of time off sick. There is nothing more annoying than investing time and money to recruit new staff to only find they are never at work for one reason or another.

Whilst high sickness absence levels can lead to fair dismissals, even for longer serving staff, that would normally require a protracted procedure with warnings and encouragement to improve attendance. For employees with fewer than two years’ employment, they cannot claim ordinary unfair dismissal, so it may be tempting to sack them without a whole series of warnings. But that can sometimes lead to problems.

One factor that needs to be considered is how you actually record absence. If the employee is off work because their child is sick, that should not be recorded as sickness absence (your employee isn’t sick!) That would normally be considered “Time off for Dependants” – all employees have the statutory right to reasonable time off to deal with emergency matters relating to a dependant (which would include a child being unable to go to school because of illness). So if you lump together dependant’s leave with sick leave, and use that as a reason to dismiss an employee, they may be able to claim unfair dismissal even with fewer than two years’ service. The reason being that the law specifies that an employee is protected from day one against being dismissed for taking this type of leave.

Another consideration when dealing with high levels of sickness absence, is that there may be a chance that some or all of the absence is due to the employee being disabled. That is not always obvious – for instance, if the employee has lots of time off due to stress or “a panic attack”, it may well be that they have a serious mental health problem, which may be classed as a disability in legal terms. If the reasons for absence don’t appear to have an underlying cause and are for things like sickness, flu, twisted ankle, etc., then that is not so much of a concern.

One way of trying to reduce frequent, short-term absence, is to treat it as a big deal each time it happens. Make sure that employees are obliged to phone in and speak to their manager when reporting in sick; hold return to work interviews with them each time or at least talk to them on their return; record the sickness accurately; and make it clear at an early stage that their level of absence is becoming a concern. If they are in their probationary period, tell them that their high level of sickness absence could be a factor in determining whether or not they pass probation.

This can be a tricky area to deal with properly, so if you need any help with dealing with sickness absence, please contact me.

National Minimum and Living Wage Rates

The current rates for the National Living Wage (for those aged 25 and over) and the National Minimum Wage are as follows:

£7.50 per hour for workers aged 25 and over
£7.05 per hour for workers aged 21 to 24
£5.60 per hour for workers aged 18 to 20
£4.05 per hour for workers aged 16 and 17
£3.50 per hour for apprentices under 19 and those over 19 in their first year*

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.