Until now, the general approach has been that a company cannot claim privilege against its own...
If you are an employee who is being subject to a capability process as a result of absence from work and you need assistance regarding the process that is being followed or if you require advice about whether it might be possible to negotiate an exit from your employment, we will be able to assist you.
The process to be followed by an employer will depend on the type of absence you are experiencing. There are many different types of sickness and absence from work, including long-term or chronic absence, persistent intermittent short term absence, pregnancy related sickness and absence and mental health and stress problems.
Long-term absence
If you are absent from work for a long period or periods of time, your employer will need to be particularly careful in respect of the procedure it follows. This is largely because an employer will want to avoid claims for disability discrimination if you were to have a long-term condition which meets the definition of disability under the Equality Act 2010. Essentially if an employee has a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities they will be regarded as disabled under the legislation.
If an employee is, or might be, regarded as disabled an employer has to consider the duty to make reasonable adjustments. In essence the employer is required to consider this in specific circumstances where the employee is being put at a substantial disadvantage. Whether any adjustments might be reasonable will depend on the circumstances.
Where an employee is absent for a long period, an employer may also need to obtain medical evidence from occupational health in order to understand the position regarding the employee’s health.
Short-term absence
If you are experiencing short-term periods of absence your employer might decide to manage this by way of following a process. This could include giving different disciplinary sanctions at different trigger points. It will be essential for an employer to follow a fair process and to act reasonably in issuing any disciplinary sanctions.