It is easy to assume that if an employee is absent frequently without adequate explanation that he or she is a time-waster and should be disciplined immediately, if not dismissed.

This was the assumption made by an employer who photographed an employee sleeping at work and then dismissed that employee as a consequence. In fact, the employee had genuinely been sick but the employer had jumped to the conclusion that he was 'in a bad way' from the night before. Without further enquiry, he was dismissed. The employee recovered almost £10,000 from the Brighton Employment Tribunal.

I was recently contacted by a client who made it clear that he had had enough of a particularly talented yet unreliable employee who had disappeared without explanation from the office yet again.

On further enquiry, the employer discovered that the employee concerned not only had an alcohol problem but was in the process of going through a divorce, had troubles with his children and had visited his doctor as a result of stress and depression. All these factors may not have been discovered if more enquiries had not been made.

Absenteeism as a result of difficult personal problems which an employee may be reluctant to discuss needs to be handled with care. These problems could include not just issues related to alcohol or drug use but also, for example, domestic violence, serious financial problems or criminal activities of a partner.

What can an employer do?

If a particular employee is proving a disruptive influence in the working environment, be it as a result of either erratic behaviour in the office or excessive absenteeism, there are various courses of action which can be taken.

A confidential counselling service or counsellor paid for by the employer is one possible answer. The information would not be available to the employer but it may assist in alleviating the long-term problems.

Conversely, the employer could refer the employee to a company doctor if such a provision is in the employee's contract of employment. This would be particularly helpful if there is a requirement to provide the report to the employer after the examination.

Additionally, the employer should make further enquiries of the employee to see whether he or she may be more forthcoming as to why his or her behaviour has been erratic.

Although none of these problems in themselves would fall under the Disability Discrimination Act 1995 (DDA), care should be taken as conditions related to some of these problems – such as stress and depression – may indeed fall within the DDA.

If the DDA is thought to apply, the employer would need to make sure the employee was not treated any less favourably as a result of his or her condition and, furthermore, would need to look at making reasonable adjustments to accommodate that particular person – such as allowing time off for counselling, allowing travel at less stressful times or reducing the workload.

If there does not seem to be a DDA issue and none of the avenues pursued yield the fact that there is a serious personal problem which explains the absenteeism or the erratic behaviour, then disciplinary action may be appropriate in these circumstances after all.

Following correct procedure

Now that there are statutory minimum disciplinary procedures, the employer would, at the very least, have to:

. warn the employee that an investigation is being carried out into his or her behaviour. If this would jeopardise an investigation, then he or she should at least be warned that an investigation has taken place;

. invite the employee to a meeting to have an opportunity to explain his or her circumstances, accompanied to the meeting by a colleague or trade union representative;

. discuss the employee's erratic conduct at the meeting and make further enquiries to try to obtain any other explanation for the problematic behaviour; and

. confirm any decision in writing, with an opportunity provided for the employee to launch an appeal.

Potential claims

Even if great care has been taken to deal with unusual absences, this does not of course mean that no claims will result if an employer does dismiss an employee. Potential claims that could be envisaged may be either unfair dismissal (where an employee may argue that conduct was not the real reason for dismissal) or disability discrimination (as a result of less favourable treatment or failure to make reasonable adjustments).

With disability discrimination claims having an uncapped compensation limit, clearly any action taken to reduce the possibility of a successful claim would be time well spent.

Laura Livingstone is an associate at Taylor Wessing.