Types of Sickness Situations
At some point during the working life of an employee it is likely that they will have to take at least some time off work due to sickness. Whether this is for a day or two or for a prolonged period of sickness it is necessary for employers to manage the process efficiently and within the boundaries of the law.
Sickness can manifest itself in several different ways and these should rightly be treated in their own way. For example sickness that is related to maternity or pregnancy is likely to be treated differently to an individual who has several short, re-occurring periods of sickness. There are also rules relating to sickness that has been at least in part caused by the employer, i.e. stress related and also sickness that is more long term and could potentially be viewed as a disability.
As well as the legal issues it is also necessary to consider the business planning that is necessary for dealing with periods of absence, particularly if these are likely to be longer term.
Statutory Sick Pay
Although all employers are required to inform employees of their entitlement to sick pay, there is no legal requirement for employers to provide full pay for any period of absence. All employees are, however, entitled to statutory sick pay when they are off subject to certain rules and regulations being met. This is paid through the standard payroll so it is often misinterpreted as a benefit received from the employer.
Critically, employees do not receive any form of statutory sick pay for periods of absence amounting to up to three days although many employers will enhance this by paying some or all of the pay that the employee would normally receive. Employees are then entitled to 28 weeks of statutory sick pay for periods of absence (multiple periods may be treated as one when the 28 weeks is being calculated). This figure is set by the government put paid through the employer.
Discretionary Sick Pay
Statutory sick pay is mandatory and not something that an employer can avoid, save as to particular unusual circumstances. In many cases employers will offer enhanced sick pay. For example, although there is no statutory right to receive payments for the first three days of sickness many employers will continue to pay an employee as normal for periods of short absence. This is a contractual provision and something that the employee will be informed of.
When it comes to contractual sick pay there are several issues that need to be borne in mind. For example, it is necessary for the contract to state the exact terms of this payment and to clearly state any limitations. The contract should also say that the statutory pay forms part of the total that will be received by the employee. For example the discretionary amount simply ‘tops up’ the statutory rather than being in addition. Any maximum term of the provision of such payments and any evidential requirements should also be clearly laid out.
Dismissal Whilst on Sick Leave
Difficulties can arise when an employer wishes to discipline or dismiss an individual who is on sick leave. Where an individual has been off sick for a prolonged period it would seem entirely reasonable to offer the employer an opportunity to release themselves of the obligations to the employee and to find an alternative employee. That said, care needs to be taken, particularly with long term sick situations to ensure that the employer does not open themselves up for an unfair dismissal claim.
Where an employee is dismissed following a period of sickness it is normally under the heading of ‘capability’. Provided the employer can display reasonableness in their actions and it can be shown that the dismissal was genuinely on the grounds of capability the employer should remain relatively safe from action. Issues such as getting advice from an independent doctor as to the condition and looking at ways in which the employee can be accommodated will all be beneficial in showing this.
Other Sickness Related Issues
Sickness and Pregnancy
Additional difficulties arise when an individual is sick during pregnancy. When an employee is within 11 weeks of their expected week of childbirth and they are off sick with a pregnancy related illness it is possible for the employer to deem their maternity leave as having started.
Care needs to be taken to treat a pregnant employee who is absent with sickness in a way that is not prejudicial to her in any way. It should be noted that dismissing a pregnant employee for a reason that is related to their pregnancy is deemed automatically unfair and therefore best avoided.
Long term sickness can also alert the employer to the fact that the employee may be considered disabled.Disability covers any long term illness that has an impact on their day to day life and therefore whilst an individual does not consider themselves disabled it may be that a lawyer advising them would!
Employers need to look for reasonable adjustments that can be made to accommodate such individuals as well as having regular meetings with the relevant professionals to ensure fairness at all times. This is particularly important where there may be a dismissal situation arising.
Return to Work Advice
- When an employee is off on sick regular (but not intrusive) contact should be maintained.
- Obtain independent medical advice where possible.
- Look at all possible adjustments that can be made to accommodate the employee.
- Undertake a return to work interview to ensure that the employee is suitably integrated back into the workplace.