Disciplinary Action For Calling In Sick


The Law Of…Discriminating Against Sick Employees

Leading up to the Christmas period, a London based branch of restaurant chain Wagamamas offered a very simple ultimatum for sick leave: call in sick, and there will be disciplinary action.

David Hession, Employment Law Associate, explains how such an approach can discriminate against workers or employees with disabilities.

Disciplinary For Calling In Sick

When the Christmas rota was handed out at the London based restaurant, a staff notice was attached stating any employee who called in sick during this period would be subject to disciplinary action. A copy of this message was sent to the Unite trade union

A spokesperson from Wagamamas confirmed that whilst the story was true, it was also an isolated occurrence. They commented that: “The manager involved feared team member shortages over the festive period and regrettably decided to take this highly unusual approach.”

Unfortunately, occurrences like this are not unheard of in large retail organisations. In 2016, Argos were discovered using a similar tactic in which they offered an 80p per hour pay rise to workers provided they did not call in sick during this period.

 Incentivising workers with bonuses such as this may seem like a hands-on approach to reducing absences and incentivising workers during busy periods, it can however also discriminate against workers who suffer from disabilities. Disabled workers who suffer from a long-term conditions are more likely go off on periods of absence. On this basis, they may have an argument to say that they are being treated differently to other workers because of their disability. 

Disabled Employees And The UK Labour Market

The Equality Act 2010 makes it unlawful for employers to discriminate against workers either directly or indirectly because they have a disability. Employers are also under an obligation to put reasonable adjustments in place where a particular working provision, criterion or practice has an adverse impact on a disabled worker or employee.

Statistics by Papworth Trust show that that disabled people suffer from a series of employment issues, for instance, disabled people are:

  • Paid 10% less than people without disabilities
  • Are 4 times more likely to be out of work
  • Suffer from a pay gap that has widened by 35% since 2010
  • Are twice as likely to live in poverty

David Comments:

"Employers need to be careful when taking disciplinary action in relation to employee absence. Having a policy of disciplining an employee when they are off sick could lead to discrimination as well as unfair dismissal claims being issued against your business. Employers can manage sickness absence but they are advised to have a robust set of policies and procedures in place before taking any disciplinary or absence management measures."  

If you are an employer or employee who has a query in relation to workplace absence of discrimination issues then feel free to get in touch with one of our employment solicitors or by using our online enquiry form.

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