Buddy says:  In order to dismiss an employee fairly, you need to be able to show that one of the potentially fair reasons for dismissal apply. When an employee is regularly late or absent from work the potentially fair reason is capability (if the employee is genuinely ill) and/or conduct (if the absences are not genuinely due to illness). Once you have established a potentially fair reason for dismissal, you must also show that the dismissal was fair in all the circumstances; this includes following a fair procedure, including the statutory dismissal procedures.

Before thinking about dismissal, an informal meeting should be held with this employee to discuss their high level of absenteeism with a view to establishing the reason behind it.  Employers should bear in mind that there may be a disability related reason for their absenteeism.  For example an employee who has a large amount of time off in winter months may be suffering from Seasonal Affective Disorder (SAD). As this is a disability which could potentially be protected under disability discrimination laws, this potential disability should be considered before a dismissal process started.  For example, you would need to consider what reasonable adjustments could be made.

Employer information:  Employers are entitled to set an acceptable attendance level and to take reasonable action to ensure that employees meet the attendance requirements. The requirements are often in the form of an attendance management policy. This will usually involve employees being given warnings about their attendance levels and informed that if there is no improvement, they could ultimately be dismissed. If the absences continue with no acceptable reason then the dismissal procedure could begin.

You should make sure that all employees have the policy applied equally to them in order to avoid discrimination claims. However if an employee is suffering from a disability then the policy should be modified to avoid indirect discrimination, for example, absences that are related to an employee’s disability should not be included when monitoring attendance levels.

Some employees will be so seriously affected by the condition that they will have the protection of the Disability Discrimination Act. To establish whether the individual is 'disabled', it will be necessary to establish whether there is a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Although SAD is limited to the winter months, it can still be defined as long term as  it is likely to recur each year.

You also have a duty to make reasonable adjustments to ensure that your disabled employee does not suffer any detriment due to their condition. Adjustments may include installing a specialist light box for the employee, or allowing them to work reduced hours during the winter months.

Even if the employee is not disabled you should consider making adjustments, especially if their attendance and performance is good for the rest of the year. If attendance still does not improve following the implementation of adjustments and you then chose to dismiss the employee, it is more likely such a dismissal will be seen as fair.