If you haven’t already done so, you should make it clear that lateness is a disciplinary offence. If you cannot resolve the problem informally, you should then follow your disciplinary procedure — holding disciplinary meetings, issuing warnings and ultimately dismissing the employee.
Bear in mind that an employee who has worked for you for more than two years may claim unfair dismissal if you do not follow your disciplinary procedure. It is unlikely to be fair to suddenly dismiss an employee on the basis of previous episodes of lateness if you did not take formal action at the time.
You need to be careful. If the employee’s sick leave is caused by a disability, you need to make reasonable adjustments to allow them to continue working. This might include allowing them more flexible working arrangements.
If an employee regularly takes sick leave, you should make them aware that this is a problem for you. Let them know that continuing high levels of sick leave could lead to disciplinary warnings and ultimately dismissal. You can also take action if an employee is on long-term sick leave and unlikely to return to work within a reasonable time.
At the same time, you should investigate whether their work is contributing to any health problems and whether you can improve things: for example, if an employee is suffering from stress-related illness.
As with any dismissal, it is important to make sure that you follow the right procedures. An employee who has worked for you for more than two years, or who is claiming disability discrimination, could take you to an employment tribunal.
Normally you do not have to pay employees for unauthorised absences from work.
However, an employee will be entitled to be paid for periods of absence if their employment contract says so, or if you have previously agreed to pay them. The same can apply if it is normal practice in your business not to make deductions for absence, even if this hasn’t been formally agreed or written down.
You cannot generally require an employee to work extra hours unless their contract says so.
In practical terms, you may want to think about offering a degree of flexibility. For example, employees might value being allowed to take a few hours off (for example, to visit the dentist) and then make the hours up later. It may also be counterproductive to penalise employees for being absent when it is outside their control — for example, during a travel strike.
Parents and carers are entitled to reasonable time off to deal with an emergency involving a child or dependant — for example, if a child needs to be taken to the doctor. You do not have to pay them for this time off (unless their employment contract says otherwise). As well as covering children, this applies to carers who are looking after their spouse, another near relative or someone else who needs care and lives at the same address.
A parent with at least one year’s service is also entitled to unpaid parental leave to look after a child under the age of five. The maximum entitlement is four weeks each year, with an overall total entitlement of 18 weeks. This also applies to children under the age of 18 who are disabled or who were adopted within the previous five years.
New parents are also entitled to statutory maternity leave, paternity leave or adoption leave when a baby is born or a child adopted.
Parents and carers who have worked for you for at least 26 weeks can also request flexible working — for example, flexitime or working from home. You must seriously consider the request, but can refuse it if you have a good business reason. From 30 June 2014, this right applies to any employee with 26 weeks’ service.
You may want to consider whether flexible working could work in your favour. Offering flexible working can make it easier to attract and retain employees. Properly managed, it can also improve employee performance.
It’s essential to respect a pregnant employee’s rights: unfair treatment could result in a claim of sex discrimination and unfair dismissal.
Pregnant employees are entitled to paid time off for antenatal care such as medical appointments. A pregnant employee may also need extra sick leave for pregnancy-related illnesses. In any case, once you know an employee is pregnant you should take steps to remove any risks that the work could harm her or the baby. If you cannot offer safe work, you should give the employee paid time off.
A pregnant employee is entitled to take up to 52 weeks statutory maternity leave. The employee should give you notice at least 15 weeks before the birth is expected, telling you when she wants to take her maternity leave. Maternity leave can start any time from 11 weeks before the expected birth. In any case, the mother must take two weeks off once the baby is born (or four weeks if she works in a factory).
While your employee is on maternity leave, she continues to earn holiday entitlement in the normal way. So an employee who takes 52 weeks maternity leave will also have earned her normal holiday entitlement for a year. You may want to allow her to add this holiday on at the end of her maternity leave.
The employee is entitled to statutory maternity pay (SMP) for up to 39 weeks of maternity leave (but as the employer you can usually reclaim most or all of this from HM Revenue & Customs). SMP is paid at 90% of the normal earnings for the first six weeks, and then at the lower of 90% and £138.18 a week. The employee’s contract can offer more generous terms.
In general, you cannot treat part-time workers worse than full-time workers. Your absence policy should apply the same rules for all employees.
In terms of sick pay, part-timers qualify for statutory sick pay in much the same way as full-time employees. So they are entitled to SSP from the fourth day of illness, but only for days when they would otherwise be at work. If your business offers a more generous sick pay scheme, this should also apply to part-time workers.
Similar rules apply where a casual worker has already agreed to an assignment. But if a casual worker declines a new assignment because of illness, you do not have to pay them.
If a part-time or hourly worker simply fails to turn up for work, you would not normally be required to pay them (unless they have an employment contract that says otherwise).
As a minimum, you are required to pay any entitlement to statutory sick pay (SSP). Statutory Sick Pay is £87.55 a week.
You start paying statutory sick pay if an employee is ill for four days or more (including weekends or other non-working days). SSP is payable from the fourth day, and is paid for any day that the employee would normally be working.
Most employees are entitled to statutory sick pay. There are a few exceptions — for example, employees who earn less than the National Insurance lower earnings limit or have already been paid the maximum 28 weeks entitlement. Your payroll software or payroll service should work out entitlements automatically.
Alternatively, you may offer your own sick pay scheme as part of the employee’s contract. Your sick pay scheme must pay at least as much as statutory sick pay.
If an employee is ill while on holiday, they can take the time off as sick leave instead. The employee will then be able to use their holiday entitlement at a different date. You will pay sick pay rather than holiday pay for the days that they take as sick leave.
Clearly there is a risk that employees will claim to have been ill while on holiday so that they can take more holiday later. This may be particularly the case if you offer generous levels of sick pay or employees’ normal salaries are not substantially higher than statutory sick pay.
You can discourage any abuse of this kind by having a sickness absence policy and making it clear that the policy applies for any sick leave. So if an employee falls ill on holiday, they will need to notify you, provide a doctor’s fit note (for illnesses of more than a week) and so on.
Your sickness absence policy should include steps to discourage this sort of behaviour. Options include:
Requiring employees to phone in and speak to you if they are taking the day off sick rather than just sending an email or leaving a voicemail.
Requiring employees to provide a doctors’ fit note if they are off sick for more than a week.
Holding return to work interviews and asking employees to sign a self-certification form explaining their illness after any sick leave.
Offering more flexible work patterns — so that if employees need time off they have an alternative to calling in sick.
Making it clear that repeated absences or sick leave cause the business problems and will lead to further investigation.
If there is still a problem, you might consider asking the employee to be seen by an occupational health specialist (at your expense) — but you cannot require them to do this unless it is included in their contract. In any case, you should investigate to try to find out whether they have a disability or if their work is contributing to the problem.
You may also want to consider taking disciplinary action, but you will need to be careful how you approach this. Accusing an employee of faking their illness is unlikely to help your working relationship. If they have more than two years’ service, false accusations could also lead to a claim of constructive dismissal.