By Mark Ellis

You work your socks off! The hard work means that the business grows, wins more customers, recruits more staff and makes more money. Everybody is happy!

Why doesn’t it always work out like that in the real world?

We’ve all heard the mantra that “your people are your biggest asset”. I totally agree - but sometimes some of them certainly feel like your biggest liability!

As your business succeeds it is, of course, dependant on your staff turning up at work and working hard. It is not only infuriating when they call in sick (invariably putting on that terrible “I am about to die” type voice) but there is a heavy price that you must pay — extra stress is placed upon other staff, the business might miss deadlines and customers and clients are kept waiting.

I don’t want you to think that I am heartless lawyer and that I don’t care about people! We all support and sympathise with staff that are genuinely unwell. Rather, I am talking here about those employees that take lots of short periods of absence for (alleged!) unrelated minor ailments. It is those malingerers that we need to tackle!

It wont’ be any great surprise to you that, according to a recent survey, up to 9 million sick notes requested each year are either questionable or invalid!

The effect of such frequent short term absence is, of course, bad for morale and bad for business! So what can you do about it?

Typically, 10% of staff are responsible for 50% of absence! The key is to tackle that 10%.

Firstly (and excuse me for stating the obvious) actively monitor all absenteeism. It’s vital that you know who is off and how often they are off. The best way to do this is to use simple absence management software — for example (and this is not intended to be an advert!) my business, Ellis Whittam, provides office control software free to its clients.

Secondly, interview all staff after every absence. The purpose of the interview is to make it crystal clear to employees; that you have noticed the absence (too many think that you don’t notice); that all absenteeism is carefully monitored; and that absenteeism causes significant problems to the business. Why not let the employee know that the rest of his/her team struggled to cope in his/her absence? At each interview tell the employee that an unacceptable frequency of absenteeism is likely to result in formal proceedings that might lead to dismissal.

Thirdly, take decisive action when the frequency of absence exceeds a predetermined level. As soon as frequency reaches that unacceptable level consider sacking the employee (see below) and/or commencing a formal process of warnings to set out the improvements required.

This sort of approach can quickly cure those recurring coughs, colds, tummy upsets and bouts of flu! A few dismissals for poor attendance sends a clear and helpful message to all staff.

A wise CEO once told me that to succeed in business you need to hire slow and fire fast! I think it was good advice. The only trouble is that unfair dismissal and discrimination laws sometimes get in the way of the “fire fast” bit. However…

In the absence of discrimination, the general rule of law (as ever, there are always some exceptions!) is that you can fire willy-nilly in the first 51 weeks of employment. So, top tip: Set lots of alarms to ring at, say, week 45 of employment. Look carefully at each employee at that point. If he/she is not making the grade — or if at any time before week 51 frequency of absence is unacceptable — get rid!

If you do decide to sack the malingerer within the first 12 months of employment then it is still advisable to run through a mini three step procedure first: (1) Invite to a formal meeting setting out the reason and offer the right to be accompanied, (2) meet and discuss the problem and (3) following dismissal offer the right to appeal.

If your malingerer has more than 12 months employment then you will need to tick certain procedural boxes before dismissal — including, I suggest, not less than three formal meetings, formal warnings and failure to hit set improvement standards within a reasonable time period. I will cover that procedure in detail in another Virtual Legal Newsletter.

As ever, I need to sound a note of caution at this point. If an employee is suffering from a long term illness (physical or mental) he/she might be disabled. In that case you must explore the possibility of making alterations to your set up to help the employee get back to work and to save the employment. You can still sack a disabled person but only if there are no reasonable alternatives and no alterations that you can make to avoid dismissal.

I hate to say (and I know that it sounds crass coming from a self serving lawyer!) but before you part company with a sick, skiving or lazy employee, please always run the facts by your lawyer first. With good advice you can certainly achieve your business objectives — but there are plenty of elephant traps for the unwary.

The information and any commentary contained in these articles is for general information purposes only and does not constitute legal nor any other type of professional advice. Neither Fresh Business Thinking nor Ellis Whittam Limited nor Ellis Whittam & Partners LLP accepts liability and to the extent permitted by law each excludes liability to any person firm or other entity for any loss which may arise from relying upon or otherwise using the information contained in these articles. If you have a particular problem query or issue you are strongly advised to obtain specific advice about the same and not to rely on the information or comments in these articles.