This month’s problem concerns:

“Over the past few months, we have noticed an increase in employee sickness absence due to common winter illnesses such as the cold and flu. There is one employee who has been off more than others and a pattern is starting to form. How do I handle it?”

Cases of cold and flu tend to be more common in the winter months and inevitably lead to increased absences among employees which can have a cumulative disruptive affect. While it is accepted that long-term employee absence can be burdensome, short and repeated absences can be equally problematic. 

With any absence issue, the starting point will be your absence policy. Ideally, you will have a robust policy which covers both long term and frequent short-term absences. You should follow your policy at each stage, as far as possible, to avoid complaints that you have treated a particular employee in a different or non-compliant manner.

In the first instance, you should speak to the employee about their absence levels. Having an informal conversation will hopefully allow you to understand whether there are any personal circumstances which are causing or worsening their absence. It may also make you aware of factors that increase the risk level in dealing with their absence.
 
Seasonal illnesses are almost certainly incapable of meeting the definition of a “disability” for discrimination purposes, because a disability needs to have both a “substantial” and “long term” impact on the employees’ ability to carry out day to day activities. It would be very difficult to establish the level of seriousness required, and a “long term” condition must last (or be capable of lasting) for 12 months or more. It would be very difficult to establish that repeated seasonal illnesses are part of the same reoccurring condition rather than distinct illnesses.
 
However, if the employee discloses an underlying health condition which causes complications if they contract a seasonal cold or flu (such as autoimmune disease), you will need to consider whether you need to adjust your normal absence management process to take account of any underlying condition, which is much more likely to be a “disability”. Common adjustments include changing or disapplying your normal absence management triggers.

If there is nothing to suggest a disability related concern, you should follow your absence management process with the employee. You should examine the evidence they have submitted to date. With seasonal cold and flu, it is likely that this will be through self-certification. You should check whether their absences fall on certain days, such as a Friday or Monday each time. If you identify a pattern of absence, you should carefully review the reasons they have provided and whether they have changed.

You can discuss the employee’s absence with them during the absence management process. You can indicate that you would like to understand their view on why they are frequently absent on particular days or following a particular pattern. If you remain concerned, you can consider whether a disciplinary process is appropriate under your disciplinary procedure. This may depend on other evidence you have, such as information provided by other employees, social media posts etc. It may be possible to resolve the issue informally before proceeding through a formal disciplinary process, though naturally this will depend on the specific circumstances. Any disciplinary process should be kept clearly separate from any absence management process. 

You should also consider whether the employee’s absences line up with particularly busy periods in your business. Some employees are reluctant to certify their absence as stress related. Hopefully, any issues of this nature can be drawn out during your initial informal conversation with the employee. This will allow you to take appropriate action internally and direct them to any support you offer, such as an employee assistance programme. 

You should keep detailed records at all stages throughout the absence management process. These records will be crucial if you eventually dismiss the employee under either your absence or disciplinary procedures, and they subsequently bring unfair dismissal or discrimination based claims. Your records will help evidence that you followed a full and fair process and that any action taken against the employee was within the band of reasonable responses.
 
Overall, the first step will be to understand whether there are underlying issues you need to consider. This will put you in a better position to proactively manage this employee’s absence, and address any concerns you have that their absences are not genuine.