Sickness Absence Guidance
Sickness absence is not just a matter of ill health, but it is also affected by personal and work factors.
Although it has been found that an early return to work after a period of sickness improves both mental and physical recovery, the process needs to be managed properly. Simple adjustments by your employer can enable you to return to work safely in order to prevent further sickness absence such as a phased return to work or a return to light duties for the first few weeks.
To successfully manage your return to work after a period of absence, it is essential to keep the lines of communication open between you and your employer in order to identify how to meet your needs and the needs within the workplace.
Although there is no legal requirement for your employer to provide a return to work policy, it is helpful if there is a guideline to set expectations, so that everyone is clear about who is responsible for taking action and what they should be doing.
Explore the applicable legislation
The three areas of legislation relevant to sickness absence are:
- The Equality Act 2010 requires employers to make reasonable adjustments for employees whose illness or injury classifies them as disabled. Your employer has a responsibility to ensure that if you have a disability, you are not treated less favourably than other employees without the disability.
- The Health and Safety at Work Act 1974 requires your employer to protect you when you return to work after sickness absence if you have become more vulnerable to risk because of illness, injury or disability.
- The Employment Rights Act 1996 requires your employer to adopt fair procedures before dismissing employees on grounds of sickness absence.
Statutory Sick Pay Guidelines
You have no statutory right to your normal pay during absence on sick leave, although your employer may pay you sick pay which is more than Statutory Sick Pay for a specific amount of time that you are off sick.
The payment of enhanced sick pay may be incorporated in your contract of employment or may be subject to your employer's discretion, and the amount of paid time off may be linked to length of service or other factors such as seniority.
In any event, Statutory Sick Pay (SSP) is generally payable to you if you are off sick for four or more days in a row, including weekends and holidays. It is not payable for the first three days in any period of entitlement, but thereafter is payable at a flat weekly rate for a maximum of 28 weeks.
Your employer must issue you with a form SSPI(T) by the end of the 23rd week to notify you when SSP will be ending. If you are still off work at that point, you may be entitled to incapacity benefit.
Your employer is not entitled to request formal medical evidence (including medical certificates) for the first seven days of your sickness absence, and self-certification by you is all that can be required during those seven days.
However, after this initial period, you are required to produce a medical certificate, and if the prognosis is that there is likely to be long-term sickness absence, your employer may decide to obtain an independent medical report.
If the sickness absence continues and there is little or no prospect of you returning to work, or if you are off sick on a frequent basis, your employer may decide to take disciplinary action on the grounds of capability.
Ultimately, you may be dismissed on the grounds of capability, providing your employer has formed a genuine and reasonably held belief that you are not meeting reasonably required standards (as you are not in work to do the job you were employed to do). However, your employer must bear in mind the laws relating to disability discrimination. How long an employee can be off sick before he or she is a risk of being dismissed by the employer will depend on many factors such as the prognosis, the employee's length of service and any policy the employer has regarding sickness absence and pay. If an employer provides contractual sick pay then there would be an implied term that the employee would not be dismissed until after the contractual sick pay has been exhausted, so as not to deprive the employee of a contractual benefit.
If you would like more information about your rights when you are off sick, please contact us for an initial free consultation.