Where absences are due to an employee’s disability, an employer will have to tread very carefully to avoid a claim of disability discrimination under The Disability Discrimination Act 1995. However, we appreciate that frequent absences can be very disruptive to an employer.

As a practical step, an employer should ensure that each absence is logged so that they can paint a reliable picture of the employee’s absences. This will enable the employer to gauge whether the absence is linked to the employee’s disability or if it is due to an unrelated reason. It is also prudent to refer the employee to Occupational Health in these circumstances.

All employers should have a sickness and absence policy in place which should set out the procedure for dealing with sickness absence. Many sickness absence policies have a trigger point, after which the absences will be dealt with in line with the employer’s disciplinary policy.

If the absences are related to the employee’s disability, it would be prudent for the employer to consider what reasonable adjustments could be implemented to help the employee and hopefully reduce the number of absences.

If the employer is satisfied that the absences are unrelated to the employee’s disability, and it is acting in accordance with its sickness absence policy, the employer may consider commencing a series of warnings in the hope that the employee’s attendance improves.

However, given the scope for a disability discrimination claim, this should only be done if the employer has clear evidence that the absences are not related to the disability, any appropriate reasonable adjustments have been offered (if necessary) and in accordance with its sickness absence policy. We would further recommend that specific legal advice is obtained before any such action is taken.