The issue of dismissing an employee because they have continually failed to attend work on Mondays has recently been considered by an employment tribunal. The case involved a barber who allegedly repeatedly did not turn up for work on Mondays. The barber was due to attend a Halloween house party in October 2021 and was told by her boss before she left for the weekend “don’t let me down on Monday”.
The barber did ring in sick on Monday, confirming in a text message that she was not coming into work because she had been sick and because her stomach was ‘killing’ her. Her boss, tired of what he believed to be her feigning illness and the pattern of her failing to attend work on Mondays, dismissed her via text message. He confirmed ‘after four years of phoning in sick on Mondays because you’ve had a good weekend, I can do what I like, trust me’.
The barber took the case to an employment tribunal, claiming disability discrimination, unfair dismissal, failing to provide a written statement of employment particulars and an unlawful deduction from wages by failing to pay national minimum wage.
The disability discrimination claim was dismissed as the employment tribunal was not satisfied that the barber had a disability under the Equality Act 2010 at the relevant time.
However, the barber was successful with the other elements of her claim and was awarded compensation as follows:
- £2,479.99 – in respect of unfair dismissal, comprising of £935.55 basic award and £1,544 compensatory award with 25% uplift for failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures. The Judge awarded the barber the maximum amount of compensation they were able to for the basic award and the loss of earnings, taking into account that the barber fully mitigated her losses by obtaining a better paid job on 22 November 2021;
- £331.90 – in respect of unauthorised deductions of wages. This related to the employer requiring the barber to get to work fifteen minutes before the start of her shift each day. The Judge confirmed they considered this to be ‘working time’ and therefore payment was due to the barber for this time;
- £623.70 – for failure to provide written particulars of employment.
Total compensation = £3,435.59
Some may feel this decision is unfair, taking into account the size of the employer and the impact of repeated absences on a small business. From reading the judgment, it is evident that the main reasons for the unfair dismissal claim succeeding were as follows:
- the employer did not have proper procedures in place relating to sickness absence, had not clearly set out expectations and did not use formal or proper processes to manage sickness absence previously;
- the employer did not carry out a ‘fair procedure’ before reaching the decision to dismiss, for example by inviting the employee to meetings to discuss performance/conduct, allowing the barber to provide an explanation for the sickness absence, and giving her the right to appeal.
This case demonstrates the importance of not making hasty knee-jerk decisions when it comes to managing sickness absence. It also shows the importance of having proper procedures in place, ensuring they are adhered to, keeping accurate records and ensuring a fair process is followed if it has reached a stage where dismissal is being considered. This is clearly the case irrespective of the size of the business and resources available, as demonstrated by this case.
The compensation awarded in this case could have been a lot higher however luckily for the employer, the barber had obtained new employment quickly and therefore the Judge was limited as to the amount of compensation that could be awarded. However, it must be noted that the financial implications of making a decision like this could be much worse for your business.
In order to avoid a situation like this occurring, we would recommend having a sickness absence management policy prepared which will ensure employees are clear on the business’ expectations of them and it will also contain a clear procedure to be followed when managing sickness absence.
It is also important to ensure that fair procedures are followed when considering disciplinary action or performance management, and legal advice should be sought if there are any complicating factors such as a potential disability.
If you need any advice on managing sickness absence, or want to discuss the preparation of a sickness absence management procedure, please do not hesitate to contact the Employment Team at employment@glaisyers.com.
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