In sickness and in health

Written by: Adam Bernstein
Published on: 16 Apr 2020

Sick leave

Image © Tupungato / Adobe Stock

According to the Office for National Statistics, in 2018, an estimated 14.4 million working days were lost because of sickness or injury in the UK − the equivalent to 4.4. days per worker.

So, where does a practice stand when sickness strikes?

The law speaks

The starting point for any discussion is what the law prescribes. Mark Stevens, a senior associate at law firm VWV, said employees can take time off from work if they are unwell.

It is for this reason that Arwen Makin, senior solicitor at ESP Law, recommends organisations have a sickness absence policy that outlines the expected reporting requirements, information on sick pay, absence trigger points and the overall absence management process.

She is also clear “that businesses do not have to put up with persistent absence − particularly if it is going to suffer as a result”. Dismissal is not unreasonable in the right circumstances.

But not all situations are treated equally, which is why employers must be mindful of employees with a disability. Ms Makin said: “Dismissal of a disabled team member can be a much riskier process, as a dismissal without a proper process can be discriminatory.” Discrimination claims have no upper limit on awards that can be made.

Where disability is involved, Mr Stevens said employers are required to put in place reasonable adjustments to make sure a disabled employee is not substantially disadvantaged when working.

Self -certifying and keeping in contact

Ms Makin said a presumption should exist on the part of the employer that employees have a genuine reason for their absence.

She added that the law allows for employees to self-certify for the first seven days before being obliged to provide a “fit note” from a doctor.

Where an employee is off, Ms Makin explained that “during this period, it is important employers keep in contact − not only from a welfare perspective, but also to gauge when an employee might return to work”.

Genuine illnesses should be handled carefully

In some situations, an illness will progress to the long term and, in these cases, employers should tread very carefully. For Mr Stevens, if an employee is suffering from a progressive illness, employers should act sensitively.

He said: “A meeting should be held between employee and employer, and it should cover the likely date of return, the employee’s prognosis and whether adjustments could be made such as flexible working.”

A point he was keen to make is employers must also be aware a long-term illness could also amount to a “disability” under the Equality Act 2010.

Another option is to consider taking advice from an occupational health advisor, as well as medical evidence from the employee’s own GP or consultant if necessary.

Here Mr Stevens said employers are expected to bear the cost of this − “contracts of employment and sickness procedures should specify that the employee may be required to attend a medical examination in certain circumstances”.

Pay and contractual rights during long-term sickness

Stories exist of individuals off on long-term sick leave and employers who haven’t written their contracts properly − leaving an employee contractually entitled to a car, laptop and phone.

The organisation then has to hire in replacements − a doubling of costs. This is because employees are entitled to all contractual rights while on sick leave.

In such cases, Ms Makin urged employers to remember “there is an implied duty of mutual trust and confidence in every contract of employment, and the withdrawal of a benefit can lead to a breach of this, in turn leading to the risk of not only a disability discrimination claim, but also a constructive dismissal claim.”

Consequently, Mr Stevens recommended an absence policy that provides that benefits can only be retained for a specified number of weeks.

As to what a sick employee receives, Mr Stevens said: “If they are eligible, employees are entitled to Statutory Sick Pay (SSP) during periods of sickness absence. They are entitled to £95.85 (from 6 April 2020) per week if they are too ill to work, for up to 28 weeks.”

SSP is paid after someone has been off for four or more days in a row (including days they are not required to work).

Another matter should be considered here – the payment of sick pay beyond the statutory minimum. Will it pay SSP only or provide for contractual sick pay in respect of a period of sickness absence that replaces a period of annual leave?

Holidays and sickness – imperfect bedfellows?

Despite what might be thought, the relationship between sickness absence and annual leave is not expressly addressed in either the Working Time Directive or the Working Time Regulations 1998. European case law has found employees cannot be sick and on holiday at the same time − and, further, they must not be made to take holiday while off sick.

Mr Stevens said “employees are able to re-arrange pre-booked statutory holiday if it is affected by sick leave” and they may be able to carry the affected days over to the next leave year. However, where the illness began during the period of annual leave, it would be reasonable to require the worker to provide proof of illness during the holiday.

Notably, Mr Stevens said this only applies to basic four-week holiday entitlement under the Working Time Directive.

In summary

Sickness and time off work are a fact of life, and not going away any time soon. Employers that act like a bull in a china shop are very likely to end up in an employment tribunal.