Legislation overview

No one piece of legislation deals exclusively with absence management. However, numerous pieces of legislation have an impact on this area. Some important examples include:

  • Disability Discrimination Act 1995
  • Employment Rights Act 1996 as amended
  • Employment Rights Dispute Resolution Act 1998
  • Employment Relations Act 1999
  • Employment Act 2002
  • The Employment Act 2002 (Dispute Resolution) Regulations 2004
  • Employment Act 2008
  • Equality Act 2010 (especially the disability discrimination provisions) 
  • The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008
  • The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 (SI 2010/137)
  • Employment and Regulatory Reform Act 2013

The Working Time Regulations 1998, maternity and other family-friendly provisions and health and safety legislation may also all have an impact on absence issues.

The Acas Code of practice on disciplinary and grievance procedures is also of crucial importance. For details of the way in which the Code and well-drafted disciplinary, dismissal and grievance procedures may be used to assist employers in certain cases of absence management, see our Discipline and grievance procedures Q&As.

We have identified a number of questions below that an employer may have about the legalities of handling unauthorised absence, short and long-term leave, seeking medical evidence and the potential repercussions of implementing disciplinary procedures and dismissing employees on long-term absence.

Q: Can an employee dismiss an employee for a single short-term unauthorised absence?

Q: Can an employer freeze an employee's pay rise because of frequent short-term sickness absence

Q: Is an employer required to seek consent from employees in order to process data relating to sickness absence?

Q: How should an employer obtain a specific medical report from an employee's doctor?

Q: If an absent employee refuses permission to contact their doctor, can the employer proceed straight to disciplinary action?

Q: Can an employer dismiss an employee because of long-term absence?

Q: How long do employers have to wait before dismissing an employee on long-term sick leave?

Q: Can an employer rely on a term in an employment law contract to dismiss an employee after 26 weeks of continuous absence as a defence to an unfair dismissal or disability discrimination claim?

Q: Is the dismissal automatically unfair if an employer dismisses an employee before the contractual or statutory entitlement to sick pay has expired?

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