Sick Leave
Taking sick leave
Employees can be entitled to sick pay. However, it is important to understand when sick leave should be taken, how much sick leave an employee can take, how much an individual is paid, whilst off work due to illness or injury, and the purpose of sick notes and fit notes.
Self-certification and Fit Notes
An employee who is unable to attend work due to illness must contact their employer as soon as possible. This is because they will lose any eligibility to sick pay if they fail to notify their employer within a specified time limit.
Failing to follow these processes is breaching their terms of employment. As a result, their employer may be able to cite breach of contract as a justification for disciplinary action and dismissal.
If an employee is absent for 28 days or less, they do not need to obtain any proof of illness from their doctor. Instead, they can self-certify. An employer will usually provide their own version of a self-certification form. However, proof of sickness may be necessary even if the total absence was less than 28 days in duration. In this case, it is the responsibility of the employer to arrange this process and pay for any costs associated with assessment.
Fit note
Should an employee require more than 28 days off sick, including days on which they are not working, they must obtain a ‘fit note’ from their doctor. See the new changes to fit notes here.
A fit note will include the following information:
· Whether or not the doctor who wrote the fit note believes that the employee is able to work – this may refer to any kind, not necessarily the work that they usually carry out in the course of their usual duties.
· Whether they believe the employee will require another fit note in the future.
A fit note may be presented as either a hand written or printed document, but, in order to be valid, it must have a doctor’s signature, together with the name and address of the GP practice or hospital.
Sick notes state the general adaptations that may assist their return to the workplace.
The four tick box options are as follows:
· PHASED RETURN TO WORK: this entails starting an employee off on a reduced number of hours or a reduced workload, before slowly building it back up to usual levels.
· ALTERED HOURS: This entails making permanent or temporary changes to an employees regular hours, in terms of hours worked or the times of a day in which they attend work.
· AMENDED DUTIES: this involves making adjustments to the kinds of work that an employee is expected to carry out.
· WORKPLACE ADAPTATIONS: This pertains to making reasonable adjustments, in order to facilitate an employees return to work.
There is space on a fit note for a doctor to make comments relating to an employees fitness for work. These may make useful recommendations about how an employee could be helped back to work in general. The doctor will also specify the time period covered by the fit note and whether they will need to see the individual again.
An employee can decide to return to work before their fit note expires. If this occurs, an employer has an obligation to carry out a risk assessment, otherwise their Employers’ Liability Compulsory Insurance may be breached.
The Employers Liability (Compulsory Insurance) Act 1969
Under this act, employers must carry insurance that will cover them in the event that an employee becomes ill or injured as a result of carrying out their duties at work. However, if an employee returns to work and their condition significantly elevates the risk of injury or illness to themselves or others, an insurer may not pay out, in the event of a claim. Employers must take out insurance offering a minimum of five million of cover.
Statutory Sick Pay (SSP)
An employee may be entitled to SSP if they meet the following conditions:
· A contract of employment
· Provided evidence of their illness after taking seven days off
· They have been sick for more than four consecutive days
· They earn a minimum of £120 per week.
· They have already undertaken work whilst under contract.
If an employee has multiple employments, they may receive sick pay from each one. They may also be declared fit to work in one role yet unfit for another.
Should an employee work a shift ending the next day, and the fall ill during the shift or thereafter, this second day can be counted as a sick day.
Who does not qualify for SSP?
· An employee in receipt of statutory Maternity Pay or Maternity allowance.
· An employee that is off sick from an illness relating to pregnancy.
· An employee who is on strike or in custody of the first day of their sickness.
· An employee who is working outside the EU.
· An employee who received Employment Support Allowance within twelve weeks of returning to work or beginning work.
· An employee who has a prolonged series of linked periods of sickness lasting three years or longer (two periods of sickness are linked if they each last four days or more and occur within eight weeks).
If an employee is not eligible or becomes ineligible for SSP, they must complete and send an SSP1 form to the Department of Work and Pensions in order to claim benefits.
Returning to Work and Return to Work Interviews
The HSE recommends that an employer should conduct a Return-to-Work interview with any employee who has taken time off due to ill health. This allows an employer to decide where an employee may require help in readjusting to the workplace.
Interviews can be conducted by any suitable individual; it is usually a member of HR or a line manager. This presents an opportunity for the employer and employee to review the employee’s duties and what adjustments need to be made.
The interview should contain questions regarding how the employee perceives their degree of freedom in the workplace:
· Do they feel they can decide when to take breaks?
· Do they feel that they have the right to decide in what order they can handle tasks?
If an employee has been away from the workplace for some time, it may be necessary to offer them training and/or health and safety briefings, before they return to their usual role. If there have been any changes to policies and procedure, it is important that the employee is given updates.
Long-term sickness
An employee is considered to be “long-term sick” if they have been on sick leave for more than four weeks.
A voluntary serviced called “Fit for Work” has been set up for employers of GPs to refer employees once they have passed the four-week mark.
With consent from the employee, a return to work place will be written following an assessment with a health professional. Once this has been made, the employee will not need to make another visit for their GP.
Dismissing an Employee with Long-term Sickness
If an employee is frequently absent, an employer can legally dismiss a work on the ground that they will be unable to perform their job to the required standard. This is because an employee’s position would be granted on the basis, they will perform their job to a set of standards.
Prior to dismissal, an employer must do all they reasonably can to help the employee to retain their job. An employer must show they cooperated with this provision to avoid unfair dismissal liability by:
· Producing records.
· Showing communication made with the employee.
· Written documentation of reasonable adjustments made.
Illness caused by a Working Environment
Some illnesses, especially mental illnesses, may be caused or worsened by an employee’s working environment.
It is the employer’s responsibility to investigate whether the working environment cause the individual to experience problems. They must conduct a “Return to Work” interview. If issues are identified, an employer must work with those affected to change the environment as necessary. If they fail to accommodate employees protected under the Equality Act, they may be liable for compensation.
Reason to believe an employee is not sick?
A fit note is usually sufficient evidence that an individual has been truly sick. However, if a self-certifying employee is suspected of fabricating their illness, it may be possible to discipline an employee on the grounds of misconduct.
Social media has allowed employers to “catch out” employees who are abusing their right to sick leave. Posts to social media proving an employee is not ill can be used as evidence and a ground for dismissal - however the usual process for a fair dismissal must be followed.
However, there is no need for an individual to prove they were bedridden for the duration of their sick leave. Employees have a reasonable right to assume that their privacy and life outside work will be respected, but at the same time employers have the right to look at publicly available information if they have a good reason to believe that an employee is guilty of misconduct.
If you require any specific or legal advice regarding anything detailed above which has not covered in this article above, please get in touch using the contact us form.