We’ve also learned, since the pandemic, that events outside our control can affect our mental and physical capacity to perform at the same pace as we did pre-pandemic. You may find it beneficial to consider your sickness policy to ensure that you are supportive of employees in these circumstances. For example perhaps you could consider introducing a nominal number of ‘Duvet Days’ that employees can take (with notice and approval) in addition to holidays when they need to recuperate.

The following is a non-exhaustive list of reasons employees may be absent:

  • Sickness;
  • Stress;
  • Caring for a sick dependant;
  • Carrying out public duties;
  • Being called for jury service; and
  • Carrying out trade union duties.
Sickness
  • Your sick pay rules should be detailed in the employees’ statement of employment, even if it simply refers to a separate Sickness and Absence Policy.
  • Ideally you will have a sickness and absence policy which will be included in your Employee Handbook. It will ensure that your staff will know who to contact, how and by when to notify them If they are not able to work. It will also confirm what certification you might require, both to enable you to pay any sick pay (if applicable) and/or for the employee to return to work. 
    • It is not a requirement for any company to pay sick pay. To avoid employees managing statutory sick pay, some organisations may suggest their employees use part of their holiday entitlement to offset lack of earnings.
    • The government has introduced a ‘fit note’, which has replaced the doctors’ sick note. This note gives GPs the ability to state what the employee is fit to do at work and what they are unfit for and suggest ways of helping the employee get back to work, such as a phased return to work, altered hours, amended duties or workplace adaptations. If you are not able to make any of the adjustments suggested, you should explain to your employee the reasons for this and arrange a review date.
    • Where employees’ sickness is self-certified, they can use the statutory Form SC2 or your own self-certification form.
  • Any absence from work should be recorded. This is especially important for absence due to sickness as employers can use such records to identify patterns, causes and where appropriate plan for cover.
Short Term Sickness

There is no legal guidance as to what constitutes a high level of short-term sickness absence but, according to the National Institute for Health and Clinical Excellence (NICE), short term sickness is absence which lasts less than 20 days. 

You should also look for trends e.g. a high number of absences on Mondays and Fridays or around holidays. In situations where there is concern as to how genuine the sickness is, you may arrange an interview with the employee and request a medical certificate for each period of absence.  You may also consider referring the employee to an Occupational Health Adviser. We recommend that you use the Employee Absence Record that can be found in the Appendices to track and monitor sickness. 

If it is found that the absences are unacceptable, for example there is evidence that the sickness is not genuine; you should warn the employee that a continuation of such absences may lead to disciplinary action or dismissal in accordance with your Disciplinary Policy and Procedure.

Long Term Sickness

According to the NICE Guidelines, long-term sickness is generally absence which lasts for 20 days and more.  This period can, however, differ from one employer to another and, in general terms, most employers would consider a sickness absence of more than three weeks’ duration to be a long-term sickness absence.  In these circumstances, it is important for the employer quickly to establish the nature of the illness and its impact on the employee’s ability to return to work.    

It is important that employees on long-term sick leave do not feel detached from their employment.  Ideally you should maintain regular contact with employees but do be cautious that the contact does not make the employee feel pressured to return to work.  

When contacting employees:

  • There should be a focus on their health and wellbeing and, only where appropriate, their return to work;
  • A suitable time and frequency for such contact should be agreed; and
  • A record should be kept.

 

There are several steps you can take to facilitate an employee’s return to work, including making flexible working arrangements, redesigning or reorganising a job role, or instigating a phased return to work.

Sometimes a home visit may be appropriate where, for example, the employee’s illness lasts a considerable length of time.  Such visits must only be done if welcomed by the employee and may be used to discuss:

  • The employee’s concerns;
  • Review any support that is being or could be provided; and
  • The employee’s recovery and how it is progressing.

Contact during an employee’s sickness can help you to agree a return to work plan with the employee.  This should not be done too soon into the period of absence and caution should be exercised to ensure that the employee is not pressured into returning to work, rather the contact should be used to co-ordinate the return to work process by putting in place any necessary measures.

Once an employee has been absent through sickness for three to four weeks, you should seek the employee’s consent to enable the employer to obtain a medical report.  This can be from the employee’s G.P but an Occupational Health report from an Occupational Health Provider will probably be of more help as this will assess the employee’s medical condition in the light of the employee’s duties as set out on the job description.  

 Once the report has been received, it should be discussed with the employee.  Any options for helping the employee to return to work should be considered. It may be appropriate to consider reasonable adjustments that can be made to their existing role (please note that this is a legal requirement if the medical condition falls within the definitions of the Equality Act – see here)

Should the medical advice be that the employee cannot continue to undertake their role, you should consider any alternative roles that may be available within the company.  Where no alternatives can be found, the employer will probably have to consider a dismissal on capability grounds.

Sickness and Dismissal

When an employee is absent for unexplained or unconvincing reasons, the matter may become a conduct issue and, in such cases, your Disciplinary Policy and Procedure should be followed. You have an obligation to act fairly and reasonably in all cases.  

In cases of genuine sickness, dismissal should always be a last resort.   Care should always be taken when considering dismissing an employee with ill health, and disciplinary action should never be taken without seeking medical advice as to the nature of the employee’s illness and the prognosis. 

There are several steps you can take in order to facilitate a return to work, such as flexible working, redesigning or reorganising the employee’s job role, or a phased return to work.

Caution should be taken if the employee’s illness amounts to a disability.  This is because you will have a legal obligation to make reasonable adjustments so the employee can carry out their job, and if these are not made the employer may be accused of disability discrimination.  It is wise to take legal advice if you are unsure what amounts to disability discrimination under the Equality Act 2010.

When deciding whether an employee’s absence record is unacceptable, you should not count any pregnancy-related illness.

Equality Act

When handling sickness absence, you must be aware of the requirements of the Equality Act 2010. This legislation makes discrimination against disabled people for a reason relating to their disability unlawful.  It is likely that a condition which has led to long-term sickness absence will fall under the requirements of the Equality Act.  However, the Equality Act may also apply to cases of short-term absence, where a high level of absence is due to an underlying disability.

 

In broad terms, the Equality Act defines disability as a long-term physical or mental impairment, which has a substantial adverse effect upon an individual’s ability to carry out normal day to day activities.  For example, it is likely that an individual would be regarded as disabled should they have a substantial impairment relating to one of the following:

  • Speech
  • Hearing
  • Eyesight (not long or short sighted which is corrected with glasses)
  • Mobility
  • Manual dexterity
  • Physical co-ordination
  • Ability to lift carry or move everyday objects
  • Memory or concentration
  • Other chronic conditions like diabetes, recurrent clinical depression and conditions such as dyslexia are all disabilities. As are conditions such as HIV, MS and all diagnosed cancers from the moment they are diagnosed.

Where an employee is deemed to be disabled, you are under a legal obligation to consider making ‘reasonable adjustments’ to enable the disabled person to work.  Reasonable adjustments will vary depending on the disability and the requirements of the individual employee.  For example, they may include:

  • Adjustments to premises
  • Reallocation of duties
  • Altering working hours
  • Allowing absence for rehabilitation or retraining
  • Providing special equipment

The cost to the business is relevant in determining whether an adjustment is reasonable or not and employers may be able to obtain grants to help fund, for instance, the provision of special equipment. 

Statutory Sick Pay

The current weekly Statutory Sick Pay (SSP) rate can be found www.gov.uk/statutory-sick-pay

SSP is subject to National Insurance contributions and tax where earnings are high enough i.e. due to payments on top of SSP.

In order to qualify for SSP, employees must:

  • Be employed;
  • Notify you of their sickness within the time limits set out in your Sickness and Absence Policy;
    • Be sick for four or more days in a row, this includes bank holidays and weekends;
    • Have average weekly earnings equal to or more than the lower earnings limit. Please see relevant government websites such as HMRC, Business Link and Directgov for details of the current lower earnings limit. 
  • SSP does not have to be paid for any days before you are notified that the employee is sick.

If an employee is sick for up to seven days, they can fill in a self-certificate, statutory Form SC2, a copy of which can be found here.  If they are sick for over seven days, you can request medical evidence to support the payment of SSP.

There are various reasons why you may not pay or will stop paying SSP and in such cases you should fill out the Form SSP1 in order to support the employees claim for Employment and Support Allowance. Find SSP1 here.

Important note: HMRC can impose penalties on the employer for not completing Form SSP1. 

You must fill out Form SSP1 if:

  • You are not paying SSP or have ended payment, to explain why they have done this;
  • The employee is not entitled to SSP but has been capable of working for at least four days in a row.  In such cases the form should be given to the employee as soon as possible so they can claim Employment and Support Allowance; or
  • You know the employee will be off for over 28 weeks.  This can be sent out up to six weeks earlier to ensure employees can claim Employment and Support Allowance without delay.
  • Where a period of sickness starts within eight weeks of a previous period of sickness, the periods will be linked and count as one for the purposes of SSP.

You can stop paying SSP where:

  • The employee is still off sick after SSP has been paid for 28 weeks.
  • The employee has had linked periods of sickness that have spanned over three years.  This is the case even where employers have not paid a total of 28 weeks’ worth of SSP.

Agency workers and casual employees may be entitled to SSP if you are required to deduct PAYE tax and Class 1 NICs. Where you are unsure you should contact HMRC.

You have a legal obligation to record details of all SSP payments made to employees.  You can do this using Form SSP2 which can be found here, or you can keep you own records.  SSP records must be kept for at least 3 years after the end of the tax year for which they relate.

Jury Service

You must allow employees time off for jury service.  However, you are under no obligation to pay employees for any time off whilst on jury service.  Employees can claim travel and food expenses, in addition to loss of earnings, from the court.

Public Duties

Employees are entitled to time off work for public duties, for example where they are a magistrate, local councillor, school governor etc.

Qualifying employees are allowed reasonable time off to go to meetings or to carry out their duties.

Any time off must be agreed with you first, and employers can refuse any such requests if they are unreasonable.  

Reasonableness depends on:

  • What the employee’s public duties are;
  • The amount of time required to carry out such duties;
  • The impact such time off will have on the employer’s business; and
  • The amount of time already taken off for any such duties.

You are not under any obligation to pay employees for time off to carry out public duties, this will usually be covered in each employee’s contract of employment.

Time off for Dependants (Emergency Leave)

A dependant is someone who reasonably relies on the employee for help in an emergency. 

Employees are entitled to unpaid time off to deal with emergencies that involve a dependant.  There is no obligation on you to pay the employee for time off for dependants.

Employees should be allowed ‘reasonable’ time off to deal with the emergency and make any necessary arrangements.

There should be no limit to the number of times employees take time off for dependants; however, any time taken off should be for genuine emergencies.  If in your opinion the time off is more than the business can cope with, the employee should be warned of this.

Trade union duties

You must allow employees reasonable time off to carry out trade union duties and activities.  You must also pay employees for any time taken off for trade union duties, unless such activities take place outside of working hours.  In all cases the amount of time taken off for such duties must be reasonable.

Special Cases

You are not legally required to give employees time off to visit the doctor or dentist unless such allowances are made in the employee’s contract of employment.  Therefore, you can, for example, request that employees make such appointments outside work hours or make time up etc.

You can, in some circumstances, claim back a percentage of SSP from the NI and PAYE liability of the employer.  Please contact HMRC for further information.

You should keep records of employees’ absences.  This will help you to identify patterns of illness and arrange cover where necessary.  It will also help you to get a general idea of each employee’s sickness level and cross reference this with all employees’ annual sickness levels.   Such records should always be kept confidential and the employee’s consent to keep such records should be in the Terms and Conditions of their Employment, or alternatively acquired separately using a consent form.  A failure to obtain such consent may result in a breach of Data Protection legislation.