Sickness absence and its impact is a difficult area for employers. Below is our guide on what you should do when you face instances of sickness absence in the workplace.
- What constitutes incapacity for work?
- What should you do if an employee calls in sick?
- What should you do if you are concerned whether or not a member of staff genuinely is unwell?
- Can you contact an employee when they are off sick?
- Should you treat long-term and short-term sickness differently?
- What are an employer’s obligations regarding sick pay?
- What should I include in a sickness absence policy?
- Return to work interviews after sickness leave ends.
- What should you do if an employee ‘may be fit’ for work or if an employee wishes to return early but their ‘fit note’ has not expired?
- Providing support to enable employees to return to work
- How to fairly dismiss when sickness absence is an issue
What constitutes incapacity for work?
Incapacity for work means that a member of staff is unfit for work by reason of illness or injury and so cannot perform their duties. For the purposes of Statutory Sick Pay (SSP), incapacity is a day when a member of staff ‘is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract’.
What should you do if an employee calls in sick?
So, practically speaking how should you deal with an employee calling in sick? It is critical that HR and managers are well trained in the proper procedures to manage sickness absences promptly, fairly and consistently when they occur. Sickness absence should not be ignored and the first point of contact should take down sufficient details of the absence when this is first reported to them, asking enough questions so that any follow up action can be taken and to know the likely return date of the employee, but not over intrusive so as to make an employee uncomfortable or make assumptions about an employee’s condition and capabilities.
When an employee contacts the company to advise that they are unfit for work, it is critical that an employee is made aware of the company’s sickness policy and what is required from them under it. Evidence of incapacity to work will form a part of this and would generally include a ‘self-certification certificate’ for the first seven days or less and a doctor’s ‘fit note’ for sickness absences longer than that. In order for an employer to administer SSP, an employee needs to provide the employer with a ‘fit note’ after seven calendar days of absence and for this to be renewed when it expires.
What should you do if you are concerned whether or not a member of staff genuinely is unwell?
If you are worried that an employee’s sickness absence is not entirely genuine you should investigate any evidence that comes to light (for example on social media) and could request that the employee undergoes a medical examination, usually by an occupational health adviser. If, as a result of further investigation there is evidence that the employee is not genuinely sick or is deliberately exaggerating their incapacity, this should be dealt with under the employer’s disciplinary procedure. HMRC advice is that for SSP, all that is required as conclusive proof of incapacity is a doctor’s ‘fit note’, unless there is very strong evidence to the contrary. See What are an employer’s obligations regarding sick pay? below.
Can you contact an employee when they are off sick?
In short, yes. It is important to ensure you stay in touch with employee’s on sick leave, but this will need to be appropriate in nature and frequency. The amount of contact will often depend on the employee's job and the size and culture of the business. A balance should be struck between demonstrating concern and offering support, and not making the employee feel too pressured to work when they are not fit to do so. If unreasonable contact causes distress to an employee, this could amount to harassment, which employers need to be mindful of. This is particularly the case if the reason for the sickness absence is related to workplace stress or bullying at work.
It may be helpful to have a specific absence management procedure which employees are aware of and set out the number of days of sickness absence after which interviews are automatically held.
It would not be advisable for an employer to stop all contact for long periods of time, especially if there are time-sensitive issues which need to be resolved, such as a redundancy consultation or disciplinary proceedings. In such cases, an employer should take a view on whether the employee is well enough to discuss them and, if in doubt, provide them with the relevant information in writing in the first instance to keep the employee informed of what is happening.
Should you treat long-term and short-term sickness differently?
There may be different considerations if an employee has been off sick for a long period of time versus a shorter absence. In the case of long-term absence, it is more likely for example that a disability may be in issue (if an illness or injury has lasted or is likely to last for 12 months or longer and affects the employee day to day). Also, practically speaking the job and personnel may have changed more if an employee has been away from the workplace for a longer time, which may mean the employee requires more training when they return to work when compared to someone who has been off for a shorter time.
Where there is a case of long-term sickness a first formal meeting should include discussion around:
- The likely date of return (or at least arrangements for future contact, dates and types of any medical review and further meetings under the company’s capability procedure) and whether the employer can continue to wait for the employee to return.
- Whether the employee has a disability and any evidence of this.
- Whether the employee thinks they can return to their previous job, without adjustments or if they feel that adjustments are required, what those adjustments are.
- If return to work is not possible, what the alternatives are – is redeployment an option? Or is application for employment benefits the best or only alternative?
- How a return to work programme would operate.
A further formal meeting would then be arranged where dismissal is contemplated.
Whereas, in the case of short-term sickness absence this should still be dealt with formally when it is repetitive, as there may be a pattern of absence, and so the employer should try to establish at an early stage if an underlying health condition is giving rise to regular absences. It is more likely that the below would be relevant to discuss in the first formal meeting relating to short-term sickness absence:
- The likelihood of short-term absences being repeated and their likely impact
- Whether the employee's job could be changed or whether redeployment is an option to reduce the impact on colleagues or the business.
- Whether the employee has a disability, medical evidence of this and whether any reasonable adjustments can be made.
- Whether it is appropriate to give the employee a formal warning for poor attendance.
Any warning should be issued following a fair procedure and should outline what will need to be achieved and over what time period. The employer should also be clear on what the next steps will be if there is no improvement within the specified timescale. Again, as with long-term sickness absence, a further meeting would be called for in cases where dismissal is contemplated.
What are an employer’s obligations regarding sick pay?
This will depend on what is contained in the employee’s employment contract. If the employer offers contractual sick pay, the employer will need to consider whether under the specific circumstances the employee qualifies for contractual sick pay, how much and for how long. If you are in doubt please contact a specialist employment solicitor, who can help advise you on your obligations under your business’ employment contract.
Even if there are no contractual sick pay provisions in your employment contract the business may still be obliged to pay SSP. The SSP scheme entitles qualifying employees absent from work for four or more days in a row due to incapacity, to receive a minimum weekly SSP payment for up to 28 weeks. In order to qualify the member of staff must be an employee working under an employment contract, they must not be able to work due to incapacity and must be earning a certain amount per week and working set days and hours. SSP is not payable if an employee has not yet started work, if they have already received 28 weeks’ entitlement to SSP in one go or through linked sickness. If an employee does not qualify for SSP, an employee should give the employee form SSP1 explaining why SSP is not being paid or continued, so that the employee can use the form to claim benefits.
Employers might want to withhold sick pay from employees who have failed to comply with the company’s sickness policy, or who an employer does not believe are genuinely unfit for work. Employers cannot withhold SSP for late receipt of medical evidence, only for late notiﬁcation of illness and an employer should always explain their decision to stop such payment. As stated in 'what should you do if you are concerned whether or not a member of staff genuinely is unwell?' above, HMRC considers that a doctor’s ‘fit note’ is conclusive evidence that an employee is genuinely unfit for work, unless there is contrary evidence. Where there is such contrary evidence, the employer has the option of getting their own medical report, asking HMRC to arrange for the employee to be examined by their Medical Services team, or explaining to the employee that SSP is being stopped and that the employee can apply to HMRC's Statutory Payments Disputes Team if they disagree.
In respect of contractual sick pay, this can only be withheld under the circumstances set out in the employee's contract or contractual sickness policy, or where the employee has otherwise agreed in writing, so as not to be an unlawful deduction from wages. The precise wording of the contract should be examined and if required solicitor’s advice on the interpretation of the relevant clauses sought, before contractual sick pay is withheld.
What should I include in a sickness absence policy?
A good sickness absence policy can be extremely helpful in, amongst other things, making clear to employee’s what is expected of them when communicating and reporting on sickness absence and what constitutes a disciplinary issue or may jeopardise their sick pay.
Things which should be covered in a sickness absence policy include:
- Responsibility for the policy – who will be responsible for the policy and updating it and training members of staff in respect of it.
- Disabilities - reassuring employees that any information that they disclose about a disability will remain confidential and, that if you are made aware of a disability, reasonable adjustments can be made where applicable
- Reporting procedures - this is to ensure that employees are clear about what they need to report, when and to whom in respect of their illness. It should be clear who in the company is responsible for dealing with each aspect of sickness absence reporting and how management and HR will interact to deal with sickness absence if it becomes a problem
- Evidence – what will be required from members of staff to demonstrate their incapacity? and when will these pieces of evidence need to be submitted to the company?
- Medical examination - Employers should consider including in their sick leave policy that employees on sick leave will agree to submit to medical examinations at the company’s expense, upon request by the company and any contractual sick pay may be linked to compliance with this request by the employee
- Unauthorised absence - making clear that if there is evidence of unauthorised absence and sickness is not genuine, that this will be a disciplinary issue and dealt with under the employer’s disciplinary procedure
- Sick pay - whether it is just SSP or contractual sick pay that the employee will receive, if they qualify, whilst on sickness absence and if it is the latter, how it will be calculated
- Sick leave and holidays - this is an optional clause but can help to make clear that where holiday is booked and an employee is sick, that this should be reported at the time so that the leave can be cancelled and taken at another time
- Communications during sickness absence - this might reassure the employee that communications will be kept confidential if they relate to a disability or if the employee has another concern about work, and can set reasonable timescales for meetings to stay in touch when on sick leave for a longer period of time
- Return to work interviews – See 'return to work interviews after sickness leave ends', below
- Sickness absence meetings procedure – explaining the process that will be followed if employees are absent after a certain period of time or if sickness absence becomes frequent. This will usually set out a first sickness absence meeting, further sickness absence meeting, final sickness absence meeting and appeal meetings
Return to work interviews after sickness leave ends.
Whilst many employers may not choose to and there is no legal obligation to, ACAS recommends that employers carry out return to work interviews after all sickness absences. Even if the interviews are short and informal, this may assist in reducing a company’s short-term absences as if employees know they are being monitored and employers raise concerns about their frequent absences, employees may feel embarrassed or concerned for their job and be less likely to take short term sickness absences, unless absolutely required. A short return to work interview can also be a helpful tool for employers to discover any underlying reasons for the employee's absence (which might be related to home or work and could be a physical ailment or stress or mental health condition).
Where an employee has been absent from work for a longer period of time, a return to work interview is definitely advisable before their proposed return, to assess the employee’s fitness to return and reintroduction to work, as processes and personnel may have changed in the employee’s absence. Managers and employees can work together to identify any adjustments which might make their return easier.
What should you do if an employee ‘may be fit’ for work or if an employee wishes to return early but their ‘fit note’ has not expired?
On a ‘fit note’ an employee’s GP has the option of ticking the ‘may be fit for work’ box. Department for Work and Pensions (DWP) guidance states that ‘if you can’t agree on any changes, you should treat the fit note as if it says that your employee is not fit for work and use it as described above. Your employee does not need a new fit note from their doctor to confirm this’. Even where the employer can accommodate the suggested alterations to the employee’s job to allow them to return to work, employers may still have concerns that they might be putting the employee or other people at risk, or even invalidating their Employers' Liability Compulsory Insurance. The DWP’s stance on this is that such insurance shall not be invalidated if a suitable risk assessment has taken place before the employee’s return, but it is prudent to contact your insurer if in doubt.
If an employee has a current ‘fit note’ from their GP, but wants to return to work prior to the expiry of that fit note, this can also raise concerns with employers particularly in relation to health and safety risks. Where this is the case, employers should consider obtaining medical advice and undertake a risk assessment before allowing the employee to return to the workplace.
As a GP can only either state that an employee is unfit to work, or ‘may be fit’, not that they are ‘fit to work’, an employee does not need to be signed back to work by their GP. A GP may be able to write a letter confirming that an employee has recovered faster than anticipated when the initial ‘fit note’ was provided, which can assist employers feeling more comfortable that the employee is ready to return but a GP may charge a fee for this.
If an employer is not satisfied that an employee is fit enough to return to work, the employer is not obliged to allow them to return, but employers should be wary as this could amount to a breach of trust and confidence, so the facts of each case will need to be considered carefully and legal advice sought, if an employer is unsure. In terms of pay, if an employee is willing to perform their employment contract and there is evidence that they could medically do this, even if the employer still has reservations about the employee’s return, the employer should normally pay the employee their normal contractual pay until the employer completes any further investigation it feels is necessary to satisfy themselves that the employee is able to return. If the medical evidence points to the fact that the employee is not fit to return, sick pay rather than normal wages should be paid by the employer.
Providing support to enable employees to return to work
If an employee has been on sickness absence, particularly if they have been away from the workplace for a long time, some adjustments may be useful. It is advisable to agree these adjustments with the relevant employee before their return so that both parties are in agreement that the adjustments would assist and not be patronising or useless in helping the employee perform their role. If an employee is disabled or subsequently found to have a disability, reasonable adjustments are required under the Equality Act 2010 and would also help an employer demonstrate fairness if there is later a claim for unfair dismissal made by the employee.
Adjustments which might be helpful in assisting an employee’s return to work after sickness absence and might be good to at least trial, include:
- Phased return - reduced days or hours initially, to pace the return and get the employee back used to work, until hours are built back up to full time again
- Start and finish time adjustments – some disabilities or illnesses might mean that it is more difficult to travel at peak times or that the employee tires as the day progresses and so an earlier finish time might assist
- Adjustment to duties – some of the relevant employee’s duties could be re-assigned to colleagues, temporarily or permanently, if those duties are a challenge to the employee with prior agreement of all members of staff involved
- Returning in addition to their cover – if an employer has hired cover temporarily whilst an employee is on long term sickness absence, the employer may keep that cover on for a short while after the employee’s return, to enable the employee who has been on long term sick leave to get up to speed with everything again and maintain consistency in service provision in some cases
- Physical changes to the workplace - for example by moving a desk, providing an ergonomic chair, footrest or other physical support or by moving a desk to avoid stairs or other physical obstacle that an employee with a particular disability or illness might struggle with
After trialling adjustments, an employer should arrange to review these with the employee and see whether the adjustments are working and whether any others need to be introduced. Achievable and preferably agreed goals should be set for the employee and further medical advice sought, if required.
How to fairly dismiss when sickness absence is an issue
It is critical, particularly where disability may be an issue, to ensure that any dismissal is fair and the reason for dismissal is ill-health. If dismissal for ill-health is contemplated, the employer should have held at least two previous meetings with the employee. In a third meeting an invitation should be sent to the employee giving at least two days’ notice and advising the employee that they are allowed to attend with a colleague or Trade Union Representative. The invitation should mention that the meeting is to discuss the employee’s absence, any adjustments, ongoing concerns by the employer, medical evidence and any relevant capability procedure and that the result of the meeting might be dismissal. If the employee claims that they are not able to attend the meeting as a result of their disability, the employer could ask what adjustments are required to enable attendance and see whether these are agreeable or refer this to a medical professional. The meeting could also be held via conference call or over the telephone. If the meeting must be postponed until a later date for medical reasons, this should be held as soon as possible and so long as the employer has acted reasonably, if there are repeated occurrences of non-attendance the employer is able to invite the employee to send written submissions and any other documents for consideration and hold the meeting in the employee’s absence.
Employers must not draw any conclusions about the result of the meeting before the meeting is held. The employee must be given the chance to raise any issues relating to their absence and the process once the employer has raised the effect this has had on the company, actions taken by the company to address the situation and provided copies of any relevant documents. If significant new facts come to light during the meeting, the employer would be best advised to adjourn the meeting to consider these before continuing the meeting. At the end of the meeting the employer should let the employee know the next steps and when they will receive a written response from the employer.
If the employee is dismissed, the employee must be advised in writing how to appeal, who the appeal should be sent to, together with that person’s contact details (which will usually be a more senior manager than held the first meeting and will be independent of the process to date) and the timescale for lodging an appeal. The meeting should be set with reasonable notice of at least two working days, and the employee should again be given the right to be accompanied by a colleague or Trade Union Representative. The employer must notify the employee of their final decision in reasonable time, following the meeting.