Employee sickness absence

How should employers deal with sickness absence?

Dealing with employee sickness absence is complex, sensitive and comes with legal risk.

If you need legal and practical advice on dealing with persistent short term absence, long term absence and/or employees with significant health problems or issues, we can help. Please do get in contact with our specialist employment lawyers.

Generally speaking the following are issues to consider and steps to take for employers dealing with employees who are off sick.

Review and/or update employment Contracts

Employers must ensure the terms and conditions relating to incapacity for work due to sickness or injury, including any information on sick pay, are set out in a written statements of particulars of employment or ensure that this statement refers to a document which sets out this information, such as a staff handbook.

One of the difficulties with policies, including a sickness absence policy, is that there can be a tendency to think that because you have a policy, you are protected. A far better approach is to ensure that you ensure that your policies are kept under review and most importantly, consistently applied with supporting documentation.

Sick Pay and Leave

 There is no statutory right to sick leave (even though there is arguably an implied contractual right through custom and practice) so any entitlement should be written into an employee’s contract of employment.

Subject to certain conditions, there is, however, a statutory right to sick pay. From April 2021, the rate of statutory sick pay is £95.35 per week for up to 28 weeks in any period of incapacity (or linked periods of incapacity). Should an employer wish to provide a more generous package then this should be written into the contract of employment.

To support businesses with fewer than 250 employees during the COVID-19 pandemic, those businesses may reclaim any COVID-19-related SSP they pay to employees for the first two weeks of the employee’s sickness, otherwise SSP is the employer’s sole responsibility and liability.

Sickness absence policy

An employer should have a policy in place to deal with sickness absence in a consistent way. This will also ensure the employee is aware of the of attendance expected and the reporting system that is in place.

An employee may need to be reminded of this when they are on sick leave as it is likely that they will not have this policy to hand.

If you need an employee absence policy or advice on managing short or long term absences, please do get in contact with us.

Potential legal  risks and claims 

The main ones an employer could face are claims of unfair dismissal and disability discrimination, the most problematic being discrimination not only because there is no requirement for qualifying service to bring such a claim but any compensation is potentially unlimited.

Disability is a protected characteristic under the Equality Act 2010. An individual is disabled if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.

Where the employee is absent because of their disability, the employer must not discriminate against them. An employer may need to make reasonable adjustments to overcome any disadvantage caused to an employee by its premises or a policy or practice that operates, such as allowing them to work flexibly, helping them rehabilitate and making physical changes to the premises.

Dismissing such an employee, because of their disability-related absence, would be unlawful discrimination unless it could be justified by the employer, or they could show that it was not reasonable to make adjustments.

Capability dismissal due to absence from work

A dismissal based on absence can potentially lead to an unfair dismissal on the grounds of capability but to bring such a claim an employee would need 2 years service.

Sickness absence dismissals can be lawful based on persistent short term absences or lengthy periods of absence. Although capability (in the sense of being incapable due to not being able to work or attending at work)  is one of the 5 potentially fair reasons for dismissal and potentially easier to defend than a disability-related dismissal, an employer would still need to establish that ill-health was the reason with reference to medical advice.

Even more importantly, aside from justifying a dismissal based on substantial grounds, employers mist be able yo demonstrate they have followed a fair procedure and adequately consulted with the employee regarding their absence and any possible adjustments. With periods of absence, warnings are generally essential and being able to demonstrate attempts to help the employee and to manage the absence and any return to work.

An employer should therefore consider all options and take professional advice, before dismissing an employee, where it becomes apparent an employee won’t be able to return to work or it is uncertain when the employee might be fit to return.

Keep Records

Employers should keep records to identify the level and patterns of sickness absence in the organisation. If patterns are identified then steps could be taken to address potential issues leading to absences.

Documentation relating to discussions and meetings with individual employees concerning their sickness absence should also be prepared. Telephone conversations and messages should be followed up with letters summarising the steps taken to contact the employee and any action plans agreed. Should there be a claim for disability discrimination or unfair dismissal, written records can be used to demonstrate that an employer acted reasonably in all the circumstances.

Return to Work Interviews

By holding meetings with employees on their return from intermittent or long-term leave, employers will be better able to understand how they may be able to help the employee, what the causes of the sickness are and whether there are any underlying issues that require workplace adjustments either to their role or working environment. These can also provide employers an opportunity to raise concerns with an employee who is taking regular but short term sickness absence.

When discussing what support an employer can provide to an employee returning from leave, they should consider:

• an occupational health assessment;
• making changes to the workplace or to how the employee works, such as different working hours; and/or
• the message to be given to work colleagues about their illness.

By actively monitoring sick leave in this way and offering support, can lead to a reduction in sick leave to the benefit of the business.

Employment lawyer advice for employers 

 We can help with the preparation of contractual or policy documents as mentioned above. We can also provide general or specific advice that you may require in relation to employee sickness absence and its management, and support and guidance throughout the disciplinary process, any dismissals, appeals and claims.

Please do get in contact.