Staff absence is often a cause for concern in nurseries, particularly when it has an adverse effect on the ratio of staff to children.
Poor attendance
Abbie had been working for almost a year at the nursery, during that time her attendance record was very poor. The Nursery Manager, had chosen to deal with the matter informally and had spoken to her about her frequent absences, but did not instigate official disciplinary action.
Towards the end of her first year Abbie stated on two occasions that her absence was due to miscarried pregnancies. The second occurred just five weeks after the first.
During the first of these two periods, her Facebook page showed photographs and comments of her holidaying in Croatia. The Manager was convinced that the employee was on holiday and not absent for the reasons she had stated. Abbie did not produce any medical evidence on her return to work although nothing was ever requested and her absence was not followed up by the Nursery.
Taking action
The second absence prompted the Manager to call the employment helpline. Abbie had provided a medical certificate for bronchitis but had then contacted the business to say that the absence was due to a miscarriage. She then failed to return to work as expected or contact the nursery, and all other attempts to contact her failed.
The Manager was advised by the helpline to write to Abbie saying her absence was unauthorised and unpaid and invite her to attend an investigation meeting. There was no response other than a further medical certificate posted to the nursery which stated absence was due to a miscarriage.
The Manager felt that the absence wasn’t genuine and she was being lied to. She wanted to dismiss Abbie. She was advised that because there was medical evidence of a miscarriage, it would be risky to dismiss Abbie, as there was a risk of a claim for pregnancy or maternity related discrimination because female employees are protected from discrimination for a period of time following the end of a pregnancy (whether the pregnancy is successful or not). The Manager was advised to maintain contact and fully investigate upon her return to work. It was possible there was a genuine reason for her being abroad at the time of her illness(s) and it could even have been on the advice of a doctor.
Abbie didn’t return to work and resigned with immediate effect after receiving the Manager’s letter.
This case shows the importance of dealing with each absence as it occurs and managing absences effectively. Every situation is different and advice on how to proceed will depend on the specific facts and potential implications of the case. However, it is essential to adopt a consistent approach which ultimately puts an organisation in a better position when absences become frequent.
The case also highlights the potential risks where an absence is linked to pregnancy even if the employee doesn’t have the requisite service to bring an unfair dismissal claim.
Advice should, of course, be sought at each stage in dealing with these matters. Please call our Legal Advice Helpline from Stephensons to speak with an advisor who will be more than happy to discuss individual circumstances with you, contacts details for Stephensons are in your policy documentation or please call one of the dot2dot team for more information.
Regards
