Introduction to this document

Dismissal due to unsatisfactory attendance

When you want to implement a dismissal on the ground of unsatisfactory attendance levels, use our dismissal letter. This is the final sanction under our attendance procedure.

Potentially fair dismissal reason

If you dismiss an employee due to their poor attendance record caused by their recurring short-term sickness absences, rather than due to their health itself, your potentially fair reason for dismissal is likely to be some other substantial reason (SOSR) and not capability. However, as the warnings process under our Attendance Procedure is very similar to that for dealing with poor performance problems under our Capability Procedure, you don’t need to worry unnecessarily at this stage about the correct categorisation of the potentially fair dismissal reason. Indeed, our Dismissal due to Unsatisfactory Attendance letter deliberately doesn’t specify the potentially fair dismissal reason. You can dismiss on unsatisfactory attendance grounds and then plead SOSR and capability in the alternative should the employee claim unfair dismissal. Even if you don’t plead both, the task of identifying the real dismissal reason rests with the employment tribunal and it can substitute another potentially fair reason and still go on to find the dismissal to be fair.

Fair dismissal procedure

There are no set number of days or instances of sickness absence after which a dismissal becomes fair; it all depends on whether you acted reasonably in all the circumstances in treating the employee’s poor attendance record as a sufficient reason for their dismissal. The legal test is whether your dismissal decision was within the “band of reasonable responses” open to you, so you’ll need to show you gave the employee sufficient opportunity to improve their attendance and you did what you could to help them – so make sure you follow our fair two-warnings process to its natural conclusion. The poor attendance problem also needs to be more than minor or trivial.

Dismissal letter

Your dismissal letter should state that the reason for dismissal is the employee’s unsatisfactory attendance levels, explain the nature of their continuing poor sickness absence record and how youve dealt with the matter on an ongoing basis and include a right of appeal against your decision. It doesn’t matter that the employee is actually at work, and not off sick, at the time of their dismissal – this won’t prevent a dismissal being fair. Our letter also serves as a prompt to check that everything else is covered, e.g. accrued holiday pay, notice period, and whether you want the employee to work it, and the effective date of termination of their employment.

Alternatives to dismissal

Prior to taking an SOSR dismissal decision on unsatisfactory attendance grounds, you should also consider whether there is any practical alternative to dismissal that would assist in improving the employee’s attendance levels (or that would be a reasonable adjustment for a disability), such as redeployment to a suitable alternative employment, e.g. to a part-time, home based or less stressful role. You can’t demote the employee or transfer them to an alternative post without their express agreement, so this would be one for them to choose to accept or not. Our letter assumes you’ve considered practical alternatives to dismissal, but you don’t believe there are any.