Letter treating uncertified sickness absence as unauthorised

If an employee has continually failed to submit a statement of fitness for work, or fit note, to cover a period of sickness absence of more than seven calendar days, you can then treat their absence as unauthorised and send them our letter.

A disciplinary offence

Our Letter Treating Uncertified Sickness Absence as Unauthorised envisages that you will already have sent the employee our Letter Requiring Statement of Fitness for Work followed by our Letter Chasing Statement of Fitness for Work, but the fit note remains outstanding and neither have you had any legitimate explanation from the employee for the ongoing non-provision of it. Therefore, the time has come when you are entitled to take a sterner approach and progress the matter to the next stage, i.e. taking disciplinary action for unauthorised absence. Our letter therefore refers to your previous correspondence and then confirms that, due to the continued lack of acceptable response, you are now regarding the employee’s absence as unauthorised absence. So, it says that you’ll shortly be writing to them to require their attendance at a formal disciplinary hearing, to be held under your disciplinary procedure.

Taking disciplinary action

From this stage, you can then use our standard suite of disciplinary letters, starting with our Notification of Disciplinary Hearing. You might first want to hold an investigatory meeting with the employee though, using our Request to Attend Investigatory Meeting. For example, it’s quite possible that the fit note has been somehow severely delayed en route, or even lost in the post. If the employee asserts that they have sent it to you, but it hasn’t arrived, as part of your investigation you may need to ask them to agree to your contacting their GP or other healthcare professional for confirmation that a fit note was indeed issued covering the relevant dates.

Gross misconduct

Assuming you have followed a fair and reasonable disciplinary procedure, whether or not unauthorised absence amounts to gross misconduct, entitling you to dismiss the employee summarily, i.e. without notice or pay in lieu of notice, will depend on all the circumstances of the individual case and also on whether you’ve listed it as such in your disciplinary procedure. So, you’ll need to listen carefully to what the employee has to say when they state their case and answer the allegations at the disciplinary hearing, plus you’ll need to consider any mitigating factors that they might present. If the employee can demonstrate that they were genuinely sick but just failed to obtain a fit note, a formal written warning might well be more appropriate for non-compliance with your sickness absence reporting procedures. If the employee may have a disability as defined by the Equality Act 2010, you’ll also need to consider whether you need to make such adjustments as are reasonable to your sickness absence policy and/or disciplinary processes.