Investigation/Establishing the Facts

For the Capability and Sickness Absence Procedure

The nature and extent of an investigation will depend on the specific circumstances of the case and whether the facts are disputed or clear and the seriousness of the matter. Often in relation to sickness and capability issues, an investigation can simply be the gathering of the facts relating to an individual’s health situation/performance and the previous in/formal management processes undertaken within the capability or sickness procedures to address concerns/support them. (Whilst in other instances, for example a complicated disciplinary case an investigation may require the planned and systematic gathering of data, interviewing of relevant witnesses and analysing relevant documents/records/policies before reaching a decision as to whether a formal hearing should be convened.

Whatever the case all explorations of the facts/investigations should be undertaken promptly, and in a sensitive, confidential manner.

One mechanism that may be relevant in some sickness absences cases to support the exploration of the situation is the use of a case management meeting. The can be an effective means of supporting a co-ordinated approach, to discuss and make decisions about a range of issues affecting an employee with ill health/disability or capability issues, including the identification of potential ways forward/action plans. Such an approach may involve a number of relevant parties e.g. Workplace Health & Wellbeing, Counselling, Health & Safety, Human Resources etc.

Factors/Issues that may be considered when establishing the facts of a case, before proceeding to a sickness capability hearing, depending upon the circumstances of the case (not exhaustive):

  • the outcome of the case management meeting (if relevant);
  • the nature of the illness and any medical information available;
  • the likely length of the continuing absence or the extent of the adhoc or unpredictable nature of the ability to attend work;
  • the need to have the work done that the employee is engaged to do;
  • the impact on the service area;
  • the impact of the absence(s) on other employees;
  • what reasonable adjustments have been considered and their impact;
  • the relevance/feasibility of other potential options e.g. Ill Health Retirement, redeployment etc;
  • our responsibilities under the Equality Act;
  • any other relevant circumstances; and
  • if/how the department can continue to cope with the employee's absence/intermittent or unpredictable attendance.

It may also involve meeting with the employee (and their representative) to ensure that any other relevant factors and personal circumstances are taken into account.

Factors that may be considered in relation to performance capability could include (not exhaustive):

  • Information previously provided to the individual to ensure they understood what was expected of them
  • Action taken to ensure the staff member aware of concerns/expectations
  • Reasonable support offered/implemented
  • Any special circumstances/mitigating information