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Sickness As Protest

Employers have become accustomed to employees going off sick, usually with stress, before disciplinary action. What happens when an employee goes off sick because he is faced with a disciplinary sanction? Are you able to take any disciplinary action? The short answer is ‘yes’. Here’s a recent case. Mr Whelan maintained trains for London Underground.

In July 2007, he was downgraded for six months (this was permitted by the company’s procedure). He was away until the following February, purportedly for back pain and stress. During his period of absence, the company took medical advice that stated that Mr Whelan was fit for work, but that he was not willing to return until he was restored to his previous grade. Although his GP signed him off for this period of absence, Mr Whelan admitted later that the GP was acting on his instructions.

When Mr Whelan returned to work, the company told him that the downgrading sanction would now take place from 22nd June until 8th December 2008. Mr Whelan went off sick from 22nd June until 3rd July, and then from 16th July until his eventual dismissal. He claimed that this absence was due to workplace harassment.

He appealed against the downgrading sanction and the company reinstated him to his original grade and pay from 14th September onwards. The company asked for permission to access Mr Whelan’s medical records to assess his health, but he refused to provide consent. On 31st October, Mr Whelan was invited to a meeting to discuss his continued absence, warning that his employment was at risk.

At the disciplinary meeting on 13th November 2008, Mr Whelan said that he ‘felt excellent’, but that he had obtained a doctor’s note signing him off due to scarlet fever. In fact, the GP certificate referred to stress as being the reason for his absence.

At a further meeting in December, Mr Whelan admitted at least twice that he was absent from work due to the downgrading sanction. The company decided to take disciplinary action. He was requested to attend a meeting on 5th May 2009, to address allegations of failing to cooperate in being assessed by occupational health, and leading the company to believe that his absence was for reasons other than his health.

When asked whether or not his absence was due to the downgrading, Mr Whelan dissembled, but did not deny the allegation. He was dismissed with notice, and complained that the dismissal was unfair. The tribunal concluded that Mr Whelan’s first sickness absence was not a coincidence because it was for almost exactly the period that he was due to be downgraded. His absence from 22nd June 2008 onwards was a reaction to being told about the decision to revise the period of downgrade to June to December that year.

The tribunal found that the company had followed a fair procedure, and that it had reasonable grounds for believing that Mr Whelan was absent not as a result of genuine illness, but because of a disciplinary sanction taken against him. It found that Mr Whelan’s dismissal was fair. This case reminds us to investigate an employee’s sickness absence if there are reasonable grounds to think that he may not be being truthful.

In addition, remember that if an employee refuses to provide medical evidence regarding any employment-related issue, it’s quite appropriate to make a decision based on the information available. If you have any questions about sickness absence, give us a call.

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