Sickness Absence

Sickness absence is not just a matter of ill-health, but is also affected by personal and work factors.

It has been found that an early return to work after a period of sickness improves both mental and physical recovery, but this needs to be managed properly. Simple adjustments can enable workers to return to work safely in order to prevent further sickness absence.

In order to successfully manage an employee’s return to work after a period of sickness absence, it is essential to keep the lines of communication open between you and them in order to identify how to meet both the needs of the employee and the needs of the workplace. Although there is no legal requirement to provide a return to work policy, it is often helpful to set down expectations, roles and procedures so that everyone is clear about who is responsible for taking action and what they should be doing.

There are three areas of legislation that are relevant to sickness absence as follows:

  • The Equality Act Act 2010 requires you to make reasonable adjustments for employees whose illness or injury classifies them as disabled. You have a responsibility as their employer to ensure that they are not treated less favourably than other employees.
  • The Health and Safety at Work Act 1974 requires you to protect employees when they return to work after sickness absence, if they have become more vulnerable to risk because of illness, injury or disability.
  • The Employment Rights Act 1996 requires you to adopt fair procedures before dismissing employees on grounds of sickness absence.

Your employees have no statutory right to their normal pay during absence on sick leave, although you may agree to pay them during at least a certain amount of time off for illness. You may decide to incorporate this in the contract of employment, and you may wish to link the amount of paid time off to length of service or other factors. Or you can make such decisions on a case by case basis.

In any event, Statutory Sick Pay ("SSP") is payable by you to (most) employees who 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. You must issue a form SSPI(T) by the end of the 23rd week to let the employee know when SSP will be ending. If the employee is still off work at that point, they may be entitled to incapacity benefit.

You are not entitled to request formal medical evidence (including medical certificates) for the first seven days of on an employee's sickness absence, and self-certification by the employee is all that can be required during those seven days. However, after this initial period, your employee is required to produce a medical certificate, and if the prognosis is that there is likely to be long term sickness absence, you may decide to obtain an independent medical report.

If the sickness absence continues and there is little or no prospect of your employee returning to work, or if your employee is frequently off sick, you may decide to take disciplinary action on the grounds of capability. Ultimately, you may dismiss an employee on the grounds of capability, providing you have formed a genuine and reasonably held belief that the employee is not meeting reasonably required standards. However, you 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 dismissedwill depend on many factors such as the prognosis, the employee's length of service and any policy that you have regarding sickness absence and pay.  If you provide 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 detailed information about sickness absence, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us especially qualified to assist you with any sickness absence issues you may have. Please contact us for an initial free telephone consultation.

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