Managing Sickness Absence - Legal Advice | Royds Withy King

Introduction

Employers and co-employees are invariably sympathetic to a genuinely sick employee. Whatever the circumstances, however, employers should be aware of the range of possibilities open to them when managing sickness absences.

Reporting procedures

All employees should be made aware of the procedure required of them if they are away sick. Usually, employees are required to telephone a nominated supervisor by a particular time, to keep that supervisor advised as to progress of recovery and to complete a self certification form on return to work. GP’s are not obliged to provide their patients with certificates for illnesses of 7 days or less.

Statutory Sick Pay (“SSP”)

The rules for qualifying and payment of SSP are complicated but in brief, the first 3 days of absence do not qualify for SSP. Thereafter, the standard rate of SSP applies and an employee reaches his or her maximum entitlement to SSP when payment has been made 28 times. Employees who exhaust their entitlement to SSP or who are excluded from the scheme may be eligible to receive State Incapacity Benefit which is contributions based. The amount of benefit payable to employees who satisfy the contributions conditions depends on their family circumstances rather than on earnings.

Company Sick Pay

Many employers pay sick pay in addition to SSP. This is either paid at the employer’s discretion or for a nominated period of full pay and then half pay. There is no legal obligation upon employers to do so and so employers are entitled to impose conditions which must be satisfied before an employee can receive company sick pay. Such conditions are usually contained in a company policy which also gives a company a range of options in circumstances where, for example, an employee’s attendance record is significantly worse than those of comparable employees, where an absence creates a particular operational difficulty or where it has gone on for a considerable length of time.

Company Sickness Absence Policy

Active involvement in monitoring sickness absence encourages communication with employees. A written policy is widely regarded as the most effective way of ensuring such communication can take place so that an employer can manage sickness absences in an appropriate way. The Policy would usually:-

  • Stipulate circumstances in which the employer would not pay company sick pay i.e. where absence is caused by a self inflicted illness or outside activities, or elective surgery rather than on medical advice
  • The procedure to be followed by the employee who comes into contact with anyone suffering an infection or contagious diseases or contracts such a disease themselves
  • Stipulate the conditions of compliance required by the insurance company if PHI cover is available together with how such cover affects payment of salary

Such a policy can also give the employer the opportunity to implement some or all of the following options:- Conduct an interview with the employee concerned so that :-

  • The employee is aware that his/her absence record is giving cause for concern
  • The employer can give consideration to any particular problems that the employee has with possible ways of helping the employee to resolve them
  • Any work related health problems can be identified and suitable adjustments made
  • Agree a reasonable period of time over which the employee’s attendance can be assessed

The employer can indicate what the next step would be if the employee fails to reach any standards or targets which have been specified

Obtain further medical information

The employer may wish to contact the employee’s doctor in order to verify for itself the likely length of absence or the long term effect on capability in relation to job performance and work attendance. Alternatively, the employer may wish to request the employee to see a doctor appointed by the company.

Consider other possibilities

The employer may wish to offer alternative employment, a shorter working week or lighter duties where the sickness/illness does not allow the employee to carry out his/her existing duties.

Institute a disciplinary procedure where appropriate.

Deal with a disabled employee

An employee has a disability for the purposes of the Equality Act if he/she has a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities. Where this is the case, an employer must:-

  • Treat that employee no less favourably than it treats or would treat others who do not have a disability
  • If the employer does treat the employee less favourably, it must be able to show that the treatment is justified (but beware of the new disability regulations limiting the grounds on which discrimination can be justified – click here for more information about disabilitydiscrimination)
  • Make a reasonable work adjustment in relation to the disabled person or show that the existing treatment is justified (provided it is not direct discrimination)

Otherwise, the employer runs the risk of receiving a claim for Disability Discrimination.

Illness whilst on Holiday

Many employers might consider that employees who fall ill whilst on holiday, and so cannot fully enjoy their break, or are prevented from going because of ill health, must just take this in their stride and lose the holiday. However cases emanating from the European Court of Justice, and followed in the UK, have held that if, through illness, an employee is prevented from taking booked annual leave, or cannot take full advantage of their leave because of illness, must have the right to take the annual leave lost or spoilt at a later date, and the period of illness marked down as sickness absence.

Obviously with someone away when they are ill this is difficult to monitor, and some employers have a policy which specifically states that annual leave lost as a result of illness will not be replaced. However, such a policy is now unlawful in the light of this case law.

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