TALKING SHOP
Sickness Absence - What Employers Need To Know -Alan Massenhove
guidance on what steps should be taken and when, they can also help ensure that all employees are treated consistently. Sickness absences can be long or short term, one-off or recurring, disability or maternity related, and can even be alleged to have been caused by overwork, bullying, harassment or other conduct of the employer or colleagues. Employers and managers need to know how to properly deal with each of these situations, because a failure to do so can result in a claim for unfair dismissal, discrimination, negligence and breach of contract, and liability under The Health & Safety at Work Act 1974 and various other statutes and regulations. Sometimes an employer may suspect that an employee is not genuinely sick. In such a case the employer must carry out an investigation, which will invariably include obtaining medical evidence. Employers are generally under no statutory obligation to pay employees who are absent from work on account of sickness or injury. Instead, employers need only pay statutory sick pay (SSP). However, the employee’s terms and conditions of employment may include provision for contractual sick pay. The SSP scheme is complicated, but in summary, eligible employees receive no payment for the first 3 days of sickness absence and thereafter they will receive SSP for up to 28 weeks. After 28 weeks employees must rely upon any other state benefits they may be entitled to. SSP paid out by employers may be reclaimed from HMRC. A condition of entitlement to SSP is that employees must notify their employer of any date on which they are unfit for work within 7 calendar days. Failure to comply with this can result in SSP being withheld. Another condition of entitlement to SSP is that employees must produce evidence of incapacity. A failure to comply does not entitle the employer to withhold SSP. During the first 7 days of absence notification will typically be self-certified, because employers have no statutory right to request a doctor’s certificate during this period. Thereafter the evidence will typically be a doctor’s certificate. Employers can also pay money in excess of SSP; the terms being a matter for the employer and the employee to agree between themselves. Provided there is no discrimination, in the absence of a contractual entitlement an employer is free to pay discretionary sick pay as they see fit. However, the employer should be careful not to set a precedent. Conflicting recent case law and EU directions have resulted in the law governing the accrual of statutory holiday by employees on long-term sick leave in a state of flux. Given this far from satisfactory state of affairs, a cautious approach would be to treat statutory holiday as continuing to accrue during any period of sickness absence, even rolling over from one holiday year into the next, and for the employer and the employee to agree this at the time. The treatment of any contractual holiday in excess of the statutory minimum holiday entitlement will depend upon the contractual arrangement. If the worker does not return to work and the employment is
S 40 • FOOTWEAR TODAY • FEBRUARY 2011
ickness absence in the workplace is hard to resolve and many employers are uncertain about what to do in these situations. Whilst sickness absence policies are useful in that they help employers and managers properly manage sickness absences by providing
terminated the employer must pay the worker a payment in lieu of the holiday accrued but untaken due to the illness or injury. Employees on sick leave can be fairly dismissed for one or more of three reasons. Most dismissals will be by reason of the employee’s ‘incapability’ to do the job. Where the absences are short term, intermittent and persistent, and the absences have a significant detrimental impact on the employer’s business, then the dismissal may be because of ‘some other substantial reason’. Unauthorised absences or failures to comply with sickness procedures may justify dismissal by reason of ‘misconduct’. Remember that every dismissal, including a dismissal related to sickness absence, must be fair. In addition, an employer must act reasonably in treating the absence as a sufficient reason for dismissal. The ACAS Code of Practice on Discipline and Grievance Procedures should be followed. The Code is intended to apply to ‘misconduct’ and poor performance situations, not to illness and injury and other ‘capability’ situations. Instead, guidance notes which accompany the Code state that in genuine illness or injury situations the guidance (appendix 4) and in the ACAS advisory booklet entitled Managing Attendance & Employee Turnover should be followed. Short-term intermittent absences should be monitored, and when the employer thinks appropriate the employee should be warned that the absences are becoming an issue. If there is no improvement then a formal warning may be appropriate. Warnings should be accompanied by reasonable attendance targets and details of the action the employer will take if the targets are not met. Any dismissal of an employee who is absent on account of sickness or injury will likely be on full notice. The general rule is that an employee should be treated as normal during the notice period, and so an employee on sick leave during the notice period should only receive any SSP and contractual sick pay to which he or she may be entitled. However, a special rule provides that where the contractual notice period does not exceed the statutory minimum notice period by at least one week the employee is entitled to full pay during the statutory notice period. Individuals who are absent from work because of illness may be protected under the Equality Act 2010. An employee with less than one year of continuous service may bring a claim when he or she does not qualify to bring an unfair dismissal claim. Compensation awards under the Equality Act are unlimited and can take account of injury to feelings.
Alan Massenhove
Alan Massenhove is a solicitor with Sykes Anderson and has 15 years previous qualified experience practicing corporate, commercial and employment law in the City of London.
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76