Employee Absence Solicitors
Managing employee absence is a challenge faced by every business, whether it's a small startup or a large company.
But, employee absence includes more than just on-off sick days. It encompasses a range of issues including:
Sickness and long-term illness;
Mental health and wellbeing;
Family and personal emergencies;
Unplanned and unapproved absences.
For businesses, managing absences effectively is important to maintain productivity, ensure fairness and compliance with employment laws, and support employee wellbeing.
For employees, a common concern about absence includes worries over job security or facing negative consequences for taking necessary time off.
At Lawhive, our network of experienced employment lawyers is on hand to offer tailored advice on managing employee absences or dealing with workplace disputes related to employee absences.
We offer high-quality legal services to employees and employers for a fraction of the cost of traditional firms, making professional legal assistance accessible to everyone. To learn more about how we can assist you in managing employee absences, contact us today and speak to one of our Legal Assessment Specialists.
What is employee absence?
Employee absence is when an employee is not present at their scheduled work time.
This can happen for a variety of reasons both planned (like annual leave) and unplanned (e.g. due to sickness).
Types of employee absence
Planned absence
Planned employee absences are those that are known and scheduled in advance. These typically include:
Unplanned absence
Unplanned absences are those that happen without any notice, often because of unplanned circumstances. These include:
Sickness
Family emergencies
Bereavement
Unapproved absences
Common reasons for employee absence
Common reasons for employee absences include:
Short-term illnesses like colds, flu, or minor injuries;
Long-term conditions such as chronic illnesses or serious medical issues;
Mental health issues like stress, anxiety, depression, or burnout;
Time off to care for dependents who are ill or need support;
Emergencies or planned absences related to family responsibilities;
Time off to grieve and manage arrangements following the death of a loved one;
Time off for the birth or adoption of a child;
Time off to deal with personal or family emergencies.
What is classed as an unauthorised employee absence?
An absence is considered unauthorised if an employee doesn't tell their employer about it in advance or as soon as possible. This includes failing to follow the company's procedure for reporting absences, such as not calling or sending an email to inform their supervisor or HR department.
Absence without a valid reason
An absence may be classed as unauthorised if an employee doesn't have a laid reason for attending work.
Absence without approval
If an employee takes time off without getting prior approval for their leave, it is considered unauthorised.
This applies even if the absence is for a seemingly valid reason as employees are generally required to request and receive approval for planned absences following company policy.
Disappearing during work hours
Employees who leave their workplace without permission during their scheduled work hours or don't return after breaks without telling their employer are considered to be engaging in unauthorised absence.
Examples of unauthorised absence
Failing to call in sick
Taking leave without approval
Not returning from a break
Failing to attend work without providing a valid reason or following the proper notification procedure.
How many days can an employee take off sick?
The amount of time an employee can take off work due to sickness is not strictly limited by law. Instead, it is determined by a combination of statutory rights, company policies, and the specifics of the employee's health condition.
Statutory Sick Pay (SSP) Entitlements
Employees who earn an average of at least £123 per week are eligible for statutory sick pay if they are off work due to illness for more than four consecutive days, including weekends and non-working days.
SSP can be paid for up to 28 weeks per period of illness.
Company sick pay policies
Many employers offer company sick pay schemes that provide enhanced sick pay benefits beyond the statutory minimum.
These policies vary widely between employers and can include full pay for a certain number of days or weeks, followed by a reduced pay rate, or a combination of full and half-day periods.
How can employee absence impact a business?
Operationally, unplanned absences can disrupt workflows and reduce overall productivity, particularly if key team members are absent. Absences can also increase the workload for remaining employees who need to cover for absent colleagues.
Financially, employee absence can increase direct costs for employers if they need to pay for temporary staff or overtime.
What is absenteeism?
Absenteeism refers to repeated instances of employees not attending work without acceptable reasons or prior approval.
Can an employee be disciplined for excessive or unapproved absences?
An employee can be disciplined for excessive or unapproved absences, provided the process is handled fairly, consistently, and in compliance with employment law.
Following a fair, progressive disciplinary process is important, starting with verbal or written warnings and escalating to more serious actions if the attendance issues persist. This approach allows the employee to improve attendance before facing more severe consequences.
Can I dismiss an employee for absence?
It is possible to dismiss an employee for:
Frequent, unplanned short-term absences if the employee does not provide satisfactory reasons or improve their attendance despite warnings and support;
Long-term absences due to illness or injury if the employee is unable to return to work and reasonable adjustments can't be made to accommodate them;
Absences without valid reason or failure to follow the company's reporting procedure, especially if they are repeated and disrupt business operations.
Having said that, before dismissing an employee due to absences it is important to:
Conduct a thorough investigation into the absences;
Meet with the employee to discuss their absence and allow them to explain the situation;
Issue formal warnings, outlining the issues, expected improvements in a reasonable timeframe, and the potential consequences of continued absence;
Explore ways to support the employee in reducing absence, such as flexible working arrangements or temporary adjustments to their role;
For long-term sickness or disability-related absences, assess what reasonable adjustments can be made to accommodate the employee's return to work;
Consider offering alternative roles that may better suit the employee's capabilities and health conditions.
In cases where excessive or unapproved absences continue despite all warnings and support measures, termination of employment may be considered as a last resort.
Legal considerations and employee rights relating to absence
Unfair dismissal protections
Employees with at least two years of continuous service can claim unfair dismissal if they believe they have been dismissed unfairly.
Employers must therefore make sure that any dismissal for absence is fair and follows a proper, consistent process.
Disability discrimination
Under the Equality Act 2010, dismissing an employee for absences related to a disability can be considered discriminatory unless the employer has made all reasonable adjustments to support the employee’s ability to work.
Employers must explore all possible accommodations before considering dismissal and ensure that the decision is not based on discriminatory grounds.
Reasonable adjustments
For employees with long-term health conditions or disabilities, employers are legally required to consider reasonable adjustments to help the employee return to work or perform their duties.
Failure to make reasonable adjustments could lead to claims of disability discrimination or unfair dismissal.
Redundancy situations
If an employee’s role becomes redundant and they are absent due to illness or other reasons, the redundancy process must be handled fairly and in compliance with redundancy laws.
Most importantly, absence should not be the primary reason for selecting an employee for redundancy unless objectively justified.
Employers in the UK have a legal and ethical duty to support employees experiencing mental health-related absences.
Employers must:
Ensure the health, safety, and well-being of their employees, which includes managing and supporting mental health;
Make reasonable adjustments to help employees with mental health conditions that qualify as disabilities perform their job effectively;
Pay eligible employees absent due to mental health issues SSP for up to 28 weeks.
How should employers document and track employee absences?
Employers should keep detailed records of all absences, including the employee’s name, dates of absence, reason for the absence, and any supporting documentation.
It is also important to document all communications relating to absences, such as emails or phone calls, and keep notes from meetings discussing attendance issues.
For smaller businesses, keeping an attendance log or spreadsheet is enough to record employee absences. However, larger enterprises may benefit from using HR software or digital tools.
Regardless of the method, employers should make sure their tracking and documentation processes comply with UK employment laws, including GDPR requirements for handling personal data.
What are an employee's rights if they need to take time off work due to illness?
Employees in the UK are protected by various rights if they need to take time off work due to illness.
These rights include the right to:
Statutory sick pay and company sick pay (if eligible);
Protection from discrimination and reasonable adjustments if they have a disability;
Not be unfairly dismissed because of their illness, especially if they have at least two years of continuous service;
Return to their job after a period of sickness absences, provided they are fit to work;
Time off for medical appointments;
Protection from unfair treatment or retaliation for taking legitimate sick leave;
Confidentiality of health information.
Can an employee take time off work to care for a sick family member?
Employees have several rights and options when it comes to taking time off work to care for a sick family member. These include:
Time off for dependants
Employees are entitled to a reasonable amount of unpaid time off to deal with emergencies involving dependants, including a sick family member.
The time off allows the employee to deal with the immediate crisis and make longer-term arrangements if necessary. The law does not specify how much time can be taken, but it must be reasonable for the situation. Typically, this a few days, but the exact duration depends on the circumstances and the employer's discretion.
Parental leave
Employees with at least one year of continuous service are entitled to take up to 18 weeks of unpaid parental leave to care for their child or children for various reasons, including caring for a sick child.
Carer's leave
Employees are entitled to unpaid carer's leave to give or arrange care for a dependant with a physical or mental illness or injury, a disability, or care needs due to old age.
Annual leave
Employees can use their annual leave entitlement to take time off to care for a sick family member.
Further to the above, some employers may offer paid compassionate or additional discretionary leave for employees caring for a sick family member or dealing with serious family illnesses.
How should employees report an absence to their employer?
Employees should follow their employer's specific procedures for reporting absences. This information should be detailed in the employee handbook, contract, or HR policies and usually includes:
Informing the appropriate person of your absence using the preferred method of communication as soon as you know you will not be able to attend work;
Briefly explaining why you are unable to attend work, such as illness, emergency, or personal matter;
Providing an estimate of how long you expect to be absent (if possible);
Following up with a fit note for absences that extend beyond seven consecutive days.
What should you do if you're being treated unfairly because of absence?
If you feel that you're being treated unfairly due to your absence from work, you should raise your concerns with your manager or HR department first. Be clear about how you feel you've been treated unfairly and provide specific examples.
If the issue can't be resolved informally, you can raise a formal grievance following your company's grievance procedure.
If your grievance is not resolved, or you face continued unfair treatment, seek advice from an employment lawyer who can provide guidance on your rights and options.
Providing you have a case, you may consider filing a claim with an employment tribunal to seek compensation for unfair treatment, workplace discrimination, or wrongful dismissal.
How Lawhive can assist with employee absence
Whether you're an employer looking to implement fair and consistent employee absence policies or an employee seeking to understand your rights when dealing with sickness or caring for a loved one, our network of solicitors is here to help.
Advice and support for employers
At Lawhive, our network of employment lawyers can help you by:
Reviewing your absence management policies to make sure they're compliant with UK employment law and best practices;
Providing practical HR advice on managing individual absence cases;
Assisting in resolving disputes over absences or disciplinary actions.
Advice and support for employees
If you're an employee, our network of employment lawyers can help you:
Understand your rights under the various laws in place to protect you from unfair treatment or discrimination related to your absences;
Raise a formal grievance if you face unfair treatment or retaliation due to your absence;
Prepare and file claims for unfair dismissal, discrimination, or other disputes related to your absences.
Your solicitor can also provide employment tribunal representation should you need it.
Schedule a free case evaluation
At Lawhive, we combine a user-friendly platform with the expertise of a regulated law firm to offer you exceptional support at a fraction of the cost of traditional high-street firms.
Contact us today for a free case evaluation and discover how we can help you with employee absence.