Sickness During Employment

Incapacity for work is generally understood to mean that a person is not fit, through illness or injury, to perform their duties. The main issues an employer will need to consider when dealing with sick employees include:

• Entitlement to statutory and/or contractual sick pay, including deciding whether qualifying conditions have been met.  Many employers will have sickness policies which set out relevant qualifying conditions.
• The reason for absence, and whether it is genuine. This will entail ascertaining the true medical position and may involve seeking a medical report.
• Whether the incapacity has been caused by workplace factors such as stress, bullying, an accident at work.
• Does the absence coincide with any periods of holiday?
• Whether the absence is related to a disability and whether any reasonable adjustments may need to be made.
• Whether the level or frequency of absence is a cause for concern: for example, a stress at work problem, or malingering?
• Whether dismissal is appropriate and, if so, ensuring a fair process is followed.

The Right
There is no statutory right to receive full pay for time spent away from work by reason of sickness. Employees may, however, be entitled to receive statutory sick pay (SSP). They may also be entitled to receive their full remuneration if their contract of employment or employer's sickness policy specifically entitles them to this.

When an Employee is ill
In most situations it will be appropriate to ask the employee the reason for their absence and the likely date of return.

Evidence of Incapacity
An employer should require evidence from the employee of their incapacity to work. In practice, this usually consists of:

• A "self-certification" for absence of seven calendar days or less. This is a signed statement from the employee giving the dates and brief description of their incapacity.
• Once an employee has been absent for 7 or more days, an employer is entitled to request a doctor's certificate. An employer should insist that sick notes are provided in a timely fashion to account for all periods of absence over a week.

Keep in Contact with Your Employee
It is important for employers to maintain appropriate contact with employees on sick leave. A balance should be struck between demonstrating concern and offering support, and maintaining sufficient distance so that the employee can recover. The amount of contact may depend on the employee’s role and size of business. As a minimum, contact should be made monthly even if it is just a quick call/email indicating concern and asking for updated prognosis, unless you have agreed a longer time-frame when the condition is likely to be long term.

Return to Work Interviews
Investigations into the reasons for an employee's absence should always be handled sensitively and are best initiated by way of holding a return to work interview.

Short and Frequent Absences
For some employees, return to work interviews can be a disincentive to take sickness leave. Employees who realise that their absences are being monitored may be sufficiently embarrassed to break their pattern of sick leave. It is good practice in any event.

Return to Work When the Employee "May be Fit"
The statutory Statement of Fitness for Work (or "fit note") used by GPs to sign an employee off work contains a "may be fit for work" option. There are tick boxes for the GP to suggest common ways to facilitate a return to work: a phased return to work; altered hours; amended duties; and/or workplace adaptations. This is meant to facilitate discussion between employer and employee about ways of getting the employee back to work. It may not always be appropriate for an employer to follow these suggestions and it should be considered as a guideline subject to other relevant commercial factors.

Long-Term Absence
For employees who have been seriously ill and absent from work for longer periods, a return to work interview before their proposed return date will assist with establishing their fitness to return and reintroducing them to work. Managers and employees can work together to identify any adjustments which might make their return easier.

When an Employee is Unlikely to Return
When an employee is unlikely to return due to a long term sickness, it is advisable for the employee to obtain detailed medical evidence about the prognosis, often company appointed occupational health physicians are used for this.

A meeting should then be arranged with the employee to discuss the prognosis and the employee may be terminated on capability grounds.

Disclaimer: This article does not contain a full statement of the law and it does not constitute legal advice. Please contact the Employment Law Team on 020 3743 0600 if you have any questions about the information set out above.