Absence & Performance Management

Employment law does not prohibit employers from contacting their employees who are absent from work due to sickness. In fact, it is good practice to maintain regular contact with absent employees. Maintaining contact with absent employees can be beneficial for both the employee and your business as it gives you an opportunity to keep them informed of their sickness entitlements (and any changes in entitlement over the period of sickness absence). It also allows you to identify and discuss opportunities to support the employee’s recovery and return to work, and to update the employee on any important changes within your business. Ideally, you should agree a level of contact with the employee that works for both parties, taking into consideration the sensitivity and circumstances surrounding the employee’s absence. Particular care should be taken when sickness absence is connected to elements of work-related stress and/or anxiety and contact in those situations may need to be less frequent.

Statutory sick pay (SSP) is a government-backed scheme under which qualifying employees receive a weekly payment known as an SSP payment. In order to qualify for SSP, an employee must be absent from work due to incapacity and SSP will typically not be claimable for the first three days of any period of absence. Most employees will qualify for SSP provided they earn an average of at least £120 per week.

If an employee is consistently failing to meet the targets or minimum requirements expected of their job role, it may first be useful to have an informal conversation with the employee to identify if there are any reasons why the employee may not be meeting targets (for example, due to illness or external factors, such as issues or concerns outside of work) and to consider ways in which your business may be able to help. If there are no apparent issues or the reasoning provided is unsatisfactory, it is likely that you will need to follow your business’ performance management policies and procedures. These are likely to involve conducting a performance management hearing to discuss any issues, setting clear targets and reviewing them after a fixed period of time (usually anywhere from one to six months) to observe whether there has been any improvement. If no improvement is made then, assuming your business’ performance management policies and procedures allow it, you may be able to dismiss the employee on suitability grounds. However, it is important to discuss any performance issues or potential decisions to dismiss an employee with a specialist employment solicitor before commencing action to ensure that you are following correct procedures to mitigate the risk of the employee bringing an employment claim following their dismissal.