You’ve received a reference reply that your prospective employee has had references of high sickness absence over the last 12 months. What should you do?
When you make a job offer to a prospective employee it should be conditional on the receipt of references which are satisfactory in your opinion. The law doesn’t say how many references you should or can actually obtain in relation to a prospective employee but it’s good practice to seek at least two (although some employers opt for three). Where an individual has been employed previously, their former employer should always be approached for a reference.
But let’s suppose that, in their response to your reference request, the previous employer says your prospective employee had a significant period of long-term sickness absence during the course of their employment. This revelation would naturally concern most employers – but could you use it as grounds to withdraw a job offer that you’ve already made?
The answer to this question was confirmed by the tribunal in West v Yorkshire Ambulance Services NHS Trust 2016. In this case, Yorkshire Ambulance Service decided to withdraw their job offer based on the amount of sickness confirmed in an ex-employee reference, and this decision amounted to disability discrimination.
The correct approach
Yorkshire Ambulance Service’s unexplained knee-jerk reaction was its downfall. When reviewing ex-employees’ references, they should have followed a more comprehensive process as per the below:
Understand the context
In the above example, the employer should have done the work to clarify the information provided within the reference regarding the absence. They could have contacted the ex-employer directly and the employee to obtain further information around the duration and the severity of the absences.
Through these conversations, Yorkshire Ambulance Service could have established whether there was a disability they needed to be aware of.
Make a fair assessment
It is unfair for employers to make a decision based solely on the absence reasons detailed in the employment reference. Consideration should be given to the severity of the absences, the suitability of the candidate and any potential risks. There may also have been other factors specific to their previous place of work which could have caused them to have high levels of absence.
Even if an employee has a disability, this may have no impact at all on their performance.
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Make an informed decision
You will then need to assess the risk of further absences in relation to the role that they are performing and also the impact this could have on the role and the employee. If the role is going to cause them any issues, then you may need to determine whether they are suitable for the role by obtaining medical advice via an occupational health professional to determine potential reasonable adjustments.
Disability-related sickness absence and legal obligations
It is important that when dealing with disability, this is handled with the utmost sensitivity in line with anti-discrimination laws. Disability is a protected characteristic under the Equality Act 2010 allowing protection against discrimination. When managing periods of absence related to an employee’s disability, employers need to tread carefully to ensure they are treating that person fairly, which could include altering or abolishing any triggers under absence management procedures which is specifically related to their disability.
Implementing reasonable adjustments
Employers are also expected to make certain allowances or reasonable adjustments for those with disabilities to make their working life as accommodating as possible and to reduce the risk of short- or long-term sickness absence. This could involve supplying specialist equipment or allowing more time to complete tasks. What is deemed reasonable will vary according to the disability and the flexibility the role and business allow.
The employer should then judge the person’s suitability within the role based on what they can do with the right reasonable adjustments in place in line with personal objectives.
The more support and flexibility an employer can offer, the lower the risk of an unfair dismissal claim.
As with any employee-related issue, the utmost confidentiality and sensitivity should be upheld when dealing with situations like this.
A conversation should take place with the employee to discuss the need to share any such information when required.
If this all sounds a bit daunting, remember two key things – even without an established HR team, you can call on HR experts such as MAD-HR to help you with one-off HR support projects. There is also low-cost HR help at hand if you make the most of it.
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