Sickness absence faqs
Dealing with ill-health absences can be a complicated area to navigate. The absences are usually short term but can be intermittent (for example, every Monday) or long-term. An employer may suspect that an absence is not genuine. Below we have set out some common queries.
1. What do I have to pay my employee when they are absent?
Employees off for a continuous period of 4 days or more (including non-working days) may be entitled to Statutory Sick Pay (SSP). Days 1-3 are unpaid. SSP is normally paid for a maximum of 28 weeks. Some employers have more generous sick pay provisions in their contracts/policies which could be payable from the first day of absence.
2. Can I contact my employee whilst they are absent?
Where an absence is long, it is sensible for to agree a pattern of contact to ensure the employer is kept up to date with progress and so that the employer can make cover arrangements. Should an employee be unwilling to maintain contact, the employer will have to rely on whatever GP and/or Occupational Health advice it has available to it. Some contracts / policies will require an employee to keep the employer up to date.
3. How do I get evidence of ill-health?
Absence up to 7 calendar days – the employee should be asked to complete a Self-Certification form on their return to work.
Absence of more than 7 calendar days –an employee should provide a GP Fit Note.
4. What should I do if I do not believe the absence is genuine?
An employer should have a return to work meeting, once the employee is back. This will provide the opportunity to fact-find. If, following this, the employer still has a reasonable belief that the absence is not genuine, the employer can escalate matters and investigate further. Once an investigation is complete, the employer can proceed to a disciplinary matter if still left with doubts.
5. What should I do if my employee wishes to return but they are still signed off by the GP?
An employer owes a duty of care to its staff and if by allowing an early return the employee becomes unwell again, the employer could be exposed to an argument it has breached that duty. The employer should seek written assurances from the employee or at the very least have a conversation of which a note is taken. The employer will want to be comfortable that a return will not cause harm to the employee or put others at risk. A risk assessment may be needed. If the employer remains unsure, it can request a GP note confirming that the GP is satisfied that the employee can return early and whether any adjustments are needed. A GP is likely to charge the employee for this so an employer may wish to consider reimbursing the employee.
6. Should I meet with the employee on their return to work to discuss their absence?
This is often helpful and, if undertaken, notes should be made. Consider carefully whether it is feasible on management to have a return to work meeting each time someone is off. A Self-Certification form may be a suitable alternative. It may work best to have the meetings only on occasions where there is a concern or where the absence has lasted more than 3 days e.g. when a GP note would be needed.
7. Can an employee take holiday whilst on sick leave?
Yes. This may be recommended by a GP. Employees also continue to build up holiday entitlement whilst off sick and can carry holiday over into a subsequent holiday year should their illness prevent them from taking it before the end of the holiday year. Limits can be placed on how long this is carried over for. It can also be possible to restrict how much holiday is carried over so that some is lost if not used in the normal holiday year.
8. What if the absence is caused by an injury at work?
The employer should ensure that the accident is reported properly according to their health and safety requirements and should notify their insurer should there be a possibility of a personal injury claim. Where the injury could amount to a disability, in rare cases, it may be appropriate to adjust normal sick pay arrangements and instead pay full pay whilst the employee is off. However in many cases, this will not be necessary and the employee can claim for loss of wages as part of any successful personal injury claim. Employers are expected to go the extra mile when taking an employee through a process to manage sickness absence, where the injury is caused by work.
9. What if the absence is due to a pregnancy-related illness?
If an employee is absent for a pregnancy-related reason during the 4 weeks immediately prior to the expected week of childbirth, this triggers the start of maternity leave on the day after the absence. Ensure the absence is not due to an injury at work (see Q8 above) and consider the absence against any risk assessment carried out for the pregnant employee, in case that flags any issues.
10. Can an employee work for another employer whilst on sick leave?
Potentially. The requirements of the two jobs could be different. If the employee breaks a leg they could be off work as a gardener but still work at their second desk-based job.
11. When should I involved Occupational Health?
Used where an impartial view is required (as opposed to a report from an employee’s GP or treating consultants). Can be requested at any time but usually where the duration of absence is unknown, it is uncertain whether the employee will ever return or whether any adjustments are needed to assist a return. Often used after 4 weeks absence.
12. How should I manage sickness absence that is becoming a problem?
Usually return to work meetings will have taken place where initial concerns about absence are discussed. Where that has not resolved the issue, a capability process can be followed. This typically involves a meeting in which the issues are raised formally, targets set for improvement and then a period set for those targets to be reviewed. A follow up meeting would then take place to review those targets and to decide if further steps need to be taken (for example, further targets with review meetings and/or a sanction). The process can be dealt with on a case by case basis or triggered where attendance falls below targets set by the employer. The process can result in an escalation of warnings, leading up to a dismissal. Ashtons HR Consulting can provide advice to an employer dealing with sickness absence issues.
13. Do I need to consider whether the employee may have a disability?
Yes. The employer may need to make reasonable adjustments to its absence management processes to accommodate a disability and/or to assist a return to work.
14. Can I dismiss an employee for ill-health?
Yes, this will often be possible where the business cannot sustain the level of absence and/or the recovery is uncertain. A process needs to be followed to reach a fair dismissal. The option of dismissal may be restricted where the employee is in receipt of Permanent Health Insurance, has ill-health retirement options or similar benefit arrangements.
15. What should I do if I have an employee who says they are unwell each time I try to arrange a meeting to discuss a disciplinary or performance issue?
We usually recommend rescheduling the meeting once. Then, the employer should consider requesting information from the GP or Occupational Health as to whether the employee is fit to attend or submit written representations to the meeting. The employee may be fit to engage in one of these two ways even if they otherwise remain unfit for work.