We have an employee with a poor record of attendance. In accordance with our Absence Policy the employee was advised at a Return to Work meeting that his attendance was being monitored, and after a series of unrelated absences he was issued with a Verbal Warning. He was also advised that a further 2 periods of sickness absence in the next 6 months may lead to further disciplinary action. As the employee was absent on only one occasion during that 6-month period no further action was taken and the Verbal Warning lapsed.

The employee has now had 3 further periods of absence and is currently off sick with 1 week remaining on his sick line. We have not advised him that his attendance is being monitored in accordance with our Policy as the reason for this and the last 3 absences has been stated as “Depression”. However, I am not sure how genuine the employee’s illness is.

I would like to give the employee another Verbal Warning and commence our Absence Management Procedure, but I am wary of progressing matters as the employee claims to be depressed. How do I handle it?


Amanda Espey, Tughans Solicitors writes:


As the employee has not been formally advised that his absences are being monitored in accordance with your internal procedures, I would not recommend that a Verbal Warning be issued at this time.

Instead, the employee should be invited to attend a Return to Work interview on his return to work, at which he should be advised that his absences will be monitored in accordance with your procedures. The employee should also be advised of the consequences of any further periods of absence within the monitoring period.

In view of the nature of the employee’s condition however, it would be advisable to refer him to an Occupational Health Consultant or other independent medical expert as part of the monitoring process.

Obtaining an accurate diagnosis and prognosis is key to the proper management of both intermittent and long-term sickness absence. It is also important for employers to ensure that they do not unlawfully discriminate against any employee contrary to the provisions of the DDA. A referral to an appropriate medical expert is therefore recommended to assess the full nature and extent of the employee’s condition, its impact on his ability to carry out his duties, and whether or not the condition would be considered a disability for the purposes of the Disability Discrimination Act 1995 (DDA).

There is a risk that this employee’s condition, depression, could amount to a disability for the purposes of the DDA. For the purposes of the Act, a person has a disability “if he has a physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities”.

If the employee is deemed to be disabled for the purposes of the DDA, you will be obliged to make reasonable adjustments to any provision, criterion or practice (or any physical feature of your premises) which places the employee, as a disabled person, at a substantial disadvantage in comparison with persons who are not disabled. This may include arranging a phased return to work or altering job duties, the workplace or working conditions, or making adjustments to the Absence Management Procedure itself. Alternatively, a reasonable adjustment may be to consider whether there is another job within your Company that might be suitable for the employee to undertake.

The effectiveness of all or any of the above will, however, depend on the nature and extent of the employee’s condition.

With the foregoing in mind, and because the employee is due to return to work next week, the first step for you should be to conduct a Return to Work interview with the employee following his current absence, at which he should be advised that his absences will be monitored for a specified period in accordance with your Absence Management Procedure. The employee should also be advised of the consequences of any further periods of absence within the specified monitoring period.

As part of the monitoring process however, and in order for you to facilitate the employee’s participation in work as far as possible, the employee should be referred to an Occupational Health Consultant or other independent medical expert as soon as possible to advise on the nature and extent of his condition, its impact on his ability to carry out his duties, and whether or not the condition would be considered a disability for the purposes of the DDA, including any reasonable adjustments that could be made.

The advice provided by the medical expert will:

• Establish a true diagnosis of the employee’s condition and whether the illness is genuine;
• Indicate the likelihood of further or repeated absences as a result of the condition;
• Assess the effect the illness has on the employee’s ability to do his job, what he is capable of doing and what, if any, adjustments can be made to help him return to and remain in work; and
• Assist in arranging a phased return to work or altered work pattern if necessary.

Once a medical report has been obtained you will be in a better position to assess the situation and implement any recommendations made by the medical expert. Until such report has been received however, I would not recommend taking any action against the employee on account of his absence so as to avoid any potential claim of disability discrimination in the event that the employee is deemed to be disabled.