Employers who have concerns in relation to approaching an employee who they feel is malingering or is regularly absent from work without permission should, in the first place, investigate such absences promptly and then meet the employee in question for purposes of finding out the reason why the employee has not attended for work.

The employee should be given the chance to explain those reasons so that the company can determine any issues that may be contributing to the employee's absence from work. Where the absence relates to a medical complaint, the employer should request that the employee either a) visit their doctor or b) if the complaint is likely to affect the way the employee does their job, arrange for the employee to visit the company doctor.

If, after investigating the matter, there appears to be no good reason for the absence, the company should invoke its disciplinary procedure and consider issuing a verbal warning to the employee in question.

In dealing with the issue of long and short-term absences, many companies are now implementing 'absence management' policies in an effort to confront absenteeism in the workplace. Such policies set out processes and procedures for both employees and those within the company who are responsible for recording and managing absenteeism and will typically include the following stages:

• initial discussion/counselling interview with the employee;
• verbal warning;
• written warning;
• final written warning/ possible temporary suspension from employment with or without pay;
• termination of employment.

It is important that the company's disciplinary procedure is set out in writing and circulated to the whole workforce so that both management and staff are fully aware of the employer's policy and procedures in relation to absenteeism.

Such information can also be included in employee's contracts of employment and the staff manual or employee handbook. It is important to note that The Employment Appeals Tribunal (EAT) when assessing whether a dismissal was fair or not will take into consideration whether such policies and procedures were adhered to.

It is worth noting that there is no legal distinction between valid absences (say, sickness or family issues) and other absences for which no valid excuse exists.

When dealing with any form of absence from work, it is vital that an employer acts in a fair and reasonable manner. The employer must manage and seek to improve the issue of absenteeism in the workplace and try to determine how such absences might be dealt with. This may include, for example, redeploying an employee to a different job to that which they were initially taken on to do.

Where no genuine reason for an employee's absence exists, the company should invoke its disciplinary procedure so that the issue can be dealt with effectively and in accordance with legal requirements. If a company feels that dismissal is warranted due to a series of unauthorised absences, it must be able to show that it acted reasonably and with due regard to fair procedures if it doesn't want to leave itself open to an unfair dismissal case.

The principles of fair procedures and natural justice include that the details of the allegations or complaints be put to the employee, that the employee be given an opportunity to respond fully to such allegations and that the employee has the right to a fair and impartial determination of the matters at issue. Also, there must be no pre-judgment of the matter on the employer's part.

For further information please contact Jennifer Clarke.