In sickness & in health

Adam Bernstein
Friday, January 17, 2020

We as humans are prone to disease, illness and injury but thankfully we tend to recover. However, in the intervening time we leave others to pick up the pieces causing inconvenience for friends and family, and for businesses, staffing problems.

Sickness is a very real issue for employers. According to the Office for National Statistics, in 2018, an estimated 141.4 million working days were lost because of sickness or injury in the UK, the equivalent to 4.4 days per worker.

So, where do employers stand when sickness absence is harming the business?

The law speaks

The starting point for any discussion on the topic is what the law prescribes. In simple terms it says that employees who are absent from work are protected and can take time off from work if they are unwell.

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

She’s also clear “that businesses do not have to put up with persistent absence, particularly if the company 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. Says Makin: “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, Mark Stevens, a senior associate at law firm VWV, says that employers are required to put in place reasonable adjustments to make sure that a disabled employee is not substantially disadvantaged when working. That said, he notes that “there may also be circumstances where an employer can fairly dismiss an employee who is not well enough to perform their role, but the steps that the employer will need to take will depend on a number of factors, including the reason for the employee’s absence and the employee’s length of service”.

Ian Dalton, HR helpdesk adviser at the BPIF, adds another dimension. He says that “it should never be assumed that an employee is not really sick; many illnesses are hidden. For example, most people will suffer with stress, anxiety or depression at some point in their lives and we all cope in different ways. You may be told or note from social media accounts that the employee is on holiday, but a holiday is a benefit to health.”

Checking up on employees who claim to be unwell

For any relationship to work there must be a solid basis of trust; the employer and employee relationship is no different. This means for Makin that there should ideally be a presumption on the part of the employer that employees have a genuine reason for their absence.

She notes 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 Makin explains that “during this period, it is important that employers keep in contact, not only from a welfare perspective, but also to gauge when an employee might be able to return to work.”

Stevens takes a similar line, adding that employers should “keep a record of their conversations and in any contact with the employee, an employer should attempt a balance between offering support and maintaining sufficient distance so that employees do not feel pressured.”

But a common-sense approach is essential when contacting employees, Dalton stresses: “There will be times when a call is necessary for work-related purposes; but consider if could you make the illness worse by calling.” Of course, contacting an employee while they are off does not automatically mean they are being victimised, but that might not be the case if contact is made every day. Fundamentally though, Dalton says to avoid putting pressure on employees as this will not aid recovery; similarly, he recommends “not discussing anything negative as this could put stress on an employee to return to work too soon.”

Of course, where suspicions are aroused of dishonesty, there’s nothing to stop an employer investigating. And as Makin points out, “employers will – in this digital age – often check social media pages to try and piece together the events that may have led to time away from the office, or to corroborate their account”. Where a suspicion – and tangible evidence – indicates that an employee is being dishonest about their reason for sickness, it becomes a misconduct matter and good judgment dictates that legal advice should be sought to ensure the right course of action is followed.

And as Stevens cautions, “employers should be careful not to jump to conclusions about whether an employee is abusing its sickness system.

“They should base any decisions on medical evidence received from the employee’s doctor, the employer’s doctor or occupational health.”

He says that if there is evidence that the employee is not genuinely sick or is deliberately exaggerating the extent of their incapacity, this could be dealt with as misconduct in accordance with the disciplinary policy.

Makin goes further. She says that if a disciplinary hearing is held after a thorough investigation: “All allegations and evidence should be reviewed before a decision is made based on the balance of probability. If an employee is found to have been dishonest, it is likely to equal gross misconduct – which can lead to dismissal without notice.”

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 Stevens, if an employee is suffering from a progressive illness, employers and managers should act sensitively: “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’s keen to make is that employers must also be aware that a long-term illness could also amount to a ‘disability’ under the Equality Act 2010, and therefore the employer should explore reasonable adjustments that might assist the employee, such as changes to hours, time off for treatment and reallocating duties.

Makin emphasises that a person “can be ‘disabled’ under discrimination law if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.” She also thinks it very important that employers consider the implications of language used when speaking to employees who fall into this category.

Another option put forward by Stevens 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. He says that employers are expected to bear the cost of this. He also suggests that “contracts of employment and sickness procedures specify that the employee may be required to attend a medical examination in certain circumstances.”

But a medical report can do more than inform on an illness, says Dalton: “By considering suggestions made by a medical report could mean that an employee can return to work earlier than anticipated. This also gives the opportunity to keep an open channel of communication with your employee.”

By definition, illness and disability can affect anyone, but the problem can become more acute when the individual concerned is in the upper echelons of a business. Not only are there the issues relating to the illness itself but also succession should that individual be unable to return. Again, Makin warns against replacing someone who is absent due to sickness before their prognosis is known, or before any decision has been made regarding their ongoing employment, as this can be disability discrimination. She adds: “While firms can consider hiring someone for an interim cover period if the absence is likely to be lengthy, it is important not to assume the original employee is not planning to return – this can be seen as predetermining a dismissal.

Dalton would hope that a business could manage internally with roles and responsibilities being redistributed. He asks firms to think – “as part of a business contingency plan do you have some idea of what your actions would be? Do you have insurance to cover the cost of a short-term replacement as this may negate some of the cost incurred?”

This perspective tallies with another step Stevens would recommend when he says “employers should look into the availability of key man protection insurance to cover the risk of key people within the business being absent for sickness reasons.”

Succession planning can give a business a boost and it’s point that Dalton validates because it offers a development opportunity for someone to step into a role or cover the most important parts of that role. He says this “will give you the opportunity to see this employee take the reins and how they cope with the additional responsibility and will be invaluable insight when you come to recruit a replacement.” But he makes plain that it is important to be clear to any employee that covers the role that it is not a foregone conclusion that the role will automatically become theirs.

As with all employees, when a senior team member is off sick, employers should continue to have regular conversations with the employee and to identify whether any adjustments can be made that could help them return to work.

Whatever a firm does, Stevens would add the caveat of equal treatment: “Consistency is important – employers should create policies and procedures for dealing with sickness absence and comply with them.” And from Dalton’s perspective, firms should “never make an employee feel like they are being replaced and no longer relevant. The employee has potentially have given years of service, loyalty and experience to the company”.

Pay & contractual rights during long-term sickness

There are stories of individuals off on long-term sick leave and firms who haven’t written their contracts properly – leaving the employee contractually entitled to a car, laptop and phone. The firm then has to hire in extra staff and another car, laptop and phone... a doubling of costs. This is because, as Dalton highlights, “employees are entitled to all contractual rights whilst on sick leave”.

In such cases, Makin urges employers to remember “that 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, Stevens recommends an absence policy that provides that benefits can only be retained for a specified number of weeks. In the absence of a provision such as this, it is likely that an employer may not be able to take back such benefits. “In addition, care should be taken if the sick leave is due to a disability, as removal of a benefit could amount to less favourable treatment because of a disability and therefore discrimination.”

As to what a sick employee receives, Stevens says that “if they are eligible, employees are entitled to Statutory Sick Pay (SSP) during periods of sickness absence. They are (currently) entitled to £94.25 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 that they are not required to work).

There is another matter to consider here – the payment of sick pay beyond the statutory minimum. For Dalton, this is “an important policy matter for the employer to determine: whether it will pay SSP only or provide for contractual sick pay in respect of a period of sickness absence that replaces a period of annual leave”. He suggests that where the employer pays contractual sick pay, the management may wish to devise separate rules to cover sickness absence that overlaps with planned holiday or that arises while the employee is on holiday. He adds that “an employer wishing to change its policy on contractual sick pay should be aware that this will amount to a change to employees’ contracts, and it should therefore seek the agreement of the employees affected before implementing any change.”

Holidays and sickness – imperfect bedfellows?

Despite what might be thought, and as Dalton points out, the relationship between sickness absence and annual leave is not expressly addressed in either the Working Time Directive or the Working Time Regulations 1998. “The European Court of Justice has had to interpret the Working Time Directive on a case-by-case basis to determine the key principles governing the interaction of holiday and sickness absence.” He explains that European case law has found that employees cannot be sick and on holiday at the same time and further, they must not be made to take holiday while off sick.

Stevens expands on this by noting that “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, Dalton says that “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”. Both Dalton and Stevens take care to say that this only applies to basic four-week holiday entitlement under the Working Time Directive.

Interestingly, Stevens says that a worker who is absent on sick leave is not required to demonstrate that they are physically unable to take annual leave by reason of their condition for the right to reschedule leave to apply.

It’s just as interesting that, as Makin says, staff who are absent due to illness – and want to use their annual leave – are also entitled to request this. It should be borne in mind, she adds, that “if employees resign or are dismissed while on long-term sick, they will be entitled to their accrued holiday for the current year, as well as any backdated leave between 15-18 months following the end of the calendar year.”

In summary

Sickness and time off work are a fact of life and they’re not going away any time soon. The law is very prescriptive on employee rights and post-Brexit (if that ever happens) the rules may change. In the meantime, employers who act like a bull in a china shop are very likely to end up in an employment tribunal. And that can be very expensive, especially if discrimination is alleged.


Dealing with sickness absence

  • Have a robust policy and procedure and ensure it is followed at all times
  • Where an employee has frequent short periods of sickness absence, the employer should ensure that the employee follows its procedures relating to notification and evidence of sickness
  • The employer should investigate the reasons for the absence. It may be appropriate to request consent to write to GP or refer to occupational health and gather evidence of any underlying health conditions on the employee resulting in the short periods of absence
  • Companies should follow sickness guidelines as there will be triggers when employees are absent for short periods of time
  • Ensure return to work interviews are completed each time an individual is sick as it is an opportunity to raise concerns and deal with high levels of sickness absence quickly
  • Depending on the circumstances, it may be appropriate for the employer to instigate a disciplinary or capability process. Once the process is completed an employer may dismiss once all avenues to aid a return to work have been exhausted and all risks considered
  • Keep an open dialogue with employees wherever possible as nothing should be a surprise them

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