Contractual sick pay

 

 

Any scheme for paying employees in excess of Statutory Sick Pay whilst they are unfit for work should be set out in their contracts of employment, a separate sickness policy or both.

Unlike Statutory Sick Pay, there is no statutory right to receive full pay for time spent away from work by reason of sickness unless the contract says otherwise.

Statutory Sick Pay (SSP)

This entitles qualifying employees who have been absent from work for four or more consecutive days (including weekends) to receive a minimum weekly payment. In summary:

 

• Employees do not receive SSP for the first three days on which they are absent from work or for periods of up to three days absence, unless their contract expressly entitles them to such payments.
• Employees are entitled to up to 28 weeks SSP in any period of incapacity for work

 

Currently, employees are eligible for SSP from the fourth day of absence if they:

 

 

• Are working under a contract of employment.
• Have been sick for four or more consecutive days.
• Have had average weekly earnings of not less than the current Lower Earnings Limit (LEL) within the previous eight weeks

 

SSP is not currently payable to:

 

• Employees who have not yet commenced work.
• Employees who have already received their full complement of SSP.
• Employees who earn less than the LEL (who may qualify for social security benefits instead of SSP).

SSP is usually paid directly to employees by employers, who are then able to reclaim it from HMRC.

 

To receive SSP, employees must:

 

 

• Notify their absence to their employer
• Have four or more consecutive days of sickness during which they are too ill to be capable of working; and
• Submit evidence of incapacity as agreed with their employer

 

Managing sickness absence in practice

 

A fair procedure will consist of the following steps:

1. Investigate the cause and likely length of absence

 

 

Long-term absence

 

 

Employers should establish the reason for absence so as to rule out or deal with any work-related cause or trigger.

 

 

An employer should consider whether an individual is likely to return to work in the foreseeable future. If the employee asserts that they are unable to work and unlikely to return the employer may wish to consider whether they would qualify under any permanent health insurance (PHI) or ill-health pension provisions and facilitate the employee contacting the relevant provider.

Short-term intermittent absence

An employee's absence should be monitored and the fact that their attendance is cause for concern, and the reasons for that concern, drawn to their attention in an informal interview. If there is no improvement then the employer should consider whether to proceed to issue a formal warning, either under its disciplinary procedure or, if it has one, its capability or managing attendance procedure.

 

 

 

Any warning should be issued following a fair procedure and should be accompanied by a timescale and suggestions for improvement, together with details of the action the employer will take if there is no improvement within the specified timescale. Employers should examine the reason for any absence during the period given for improvement, the likelihood of further absence and the impact of the absence on the employee's department and colleagues. Employers' actions should also be consistent with their treatment of other staff in similar positions.

 

 

 

2. Keep in contact with employee

It is important for employers to maintain appropriate contact with employees on sick leave. The amount of contact will often depend on the employee's job and the size and culture of the employer's business. If the employee is a senior manager in a small office then it is likely that their input might be needed from time to time, for example, to identify the location of key documents. Contact could, for example, be limited to a regular telephone update conversation.

 

 

3. Obtain medical evidence

 

 

Employees who have been absent for long periods of time should be encouraged to contact their employer following any update on their medical condition. Employers should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. The employer will normally bear the cost of an examination where it has been undertaken at their request. Information from an independent specialist who has not previously been responsible for the employee is generally considered more reliable than information from an employee's GP.

 

 

 

Once an employer is in possession of a medical report about an employee it will be required to act in accordance with any recommendations it makes, unless there is clear evidence contradicting them.

 

 

 

With short-term absences which are apparently unconnected, employers should explore whether there is any underlying health problem which the employee may be reluctant to address and which is contributing to their taking time off work. The employee's absence may not even be health-related: it may relate to a problem with a colleague or manager or workload.

 

 

 

The employer could obtain medical evidence and arrange a return to work interview after each period of sickness leave

 

 

 

Whenever obtaining a medical report, employers must comply with the Access to Medical Reports Act 1988.

 

 

 

4. Meeting and consulting with employee regarding medical evidence

 

 

If the employer has obtained a medical report, it should meet with the employee to discuss the report before taking any action on the basis of its recommendations. It is usually sensible to write to the employee in advance, setting out the nature of the meeting. It may be necessary to hold more than one meeting. Consultation involves an ongoing exchange of information and views concerning the illness between the parties and full evaluation of any available medical evidence. This is especially important where there is any conflict between the evidence put forward by the employee and that obtained by the employer.

 

 

 

If the employee refuses to co-operate with the employer's process, this may be held against the individual.

 

 

 

The purpose of the meetings

The purpose of the meetings that form part of the sickness absence procedure is to establish:

 

• How the employee is feeling;
• The medical advice that the employer has received.

 

In the case of repeat absences:

• the effect of the pattern of absences on the employee's colleagues, department and the employer's business;
• the likelihood of continuing absences and the impact they are likely to have;
• how the position can be reviewed; and/or
• whether there are changes to the employee's job or redeployment opportunities that would assist in attendance, reduce the effect on colleagues or the employer's business.

 

In the case of long-term absences:

 

• the likely date of return (arrangements for future contact, further medical review and further meetings under the procedure) and whether the employer can continue to wait for the employee to return;
• whether the employee perceives they can return to their previous job and what adjustments can be made;
• what alternatives the employee may wish to explore: redeployment or application for employment benefits;
• the mechanics of a return to work programme; and/or
• whether any of the following can provide assistance to the employee while they are absent or to the employer in considering adjustments to the workplace or job: government agencies, charitable bodies and other industry and specialist organisations.

When the situation in either a repeat absences or long-term absence case cannot be resolved:

 

• whether the employee qualifies for any other benefits under their contract; and/or
• termination of the employee's employment.

Arrangements for the meetings

Employers should consider holding any meeting at the employee's house or, if it is difficult for them to attend the employer's premises, at a neutral venue.

 

 

 

Where the employee is seriously ill or disabled, employers should consider permitting the individual to be accompanied by a friend or family member. If the individual is unable to explain their case because of a disability, then a tribunal may view it as a reasonable adjustment to require the employer to allow a member of the family, a friend or a professional representative to attend the meeting.

 

 

 

The right to be accompanied

The employee may have a statutory right to be accompanied by a trade union representative or a fellow worker at the meeting where it could result in either:

 

• A formal warning being issued to a worker by the employer.
• The taking of some other action in respect of a worker by the employer.
• The confirmation of a warning or some other action.

 

Consider reasonable adjustments or alternative employment

In consultation with the individual, the employer should consider whether there are any reasonable adjustments open to the employer to enable the individual to return to work in some capacity in the foreseeable future. The employee should be asked for their suggestions, but it is not enough for an employer simply to rely on the evidence put forward by the individual.

 

 

 

Employers should consider if there is another job within the business that might be more suitable for the employee.

 

 

 

When dismissal is contemplated

Any medical report which will be used as evidence in support of an employer's decision to dismiss should be up-to-date and give a clear prognosis about the likely duration of the employee's illness or medical condition. However strongly the medical evidence may point towards dismissal, the employer should always consult with the employee rather than assuming that the expert's opinion alone will be decisive.

 

1. Write to the employee

If an employer has followed some of the steps outlined above and is subsequently contemplating dismissal then the employer should write to the employee, informing them of this fact and inviting them to a meeting at which their views will be sought. The letter should set out details of the employee's absence and summarise or enclose any medical evidence relied on.

 

 

 

For short-term persistent absence, the letter should set out the fact that the employee's attendance is unacceptable and the reason(s) why. Details of the employee's absences and the steps taken to deal with them to date should be included so that the employee has sufficient information to hand to put their case at the subsequent meeting. Copies of any relevant documentation should also be included (including any sickness or managing attendance procedure, medical evidence and correspondence with the employee).

 

 

 

For an employee who has been on long-term sickness leave, the employer should outline the length of their absence, the effect it has had on the business, and summarise any medical advice and the result of previous consultations with the employee regarding the duration of their absence and the possibility of any adjustments to their work or working environment. If dismissal is contemplated at this stage, the relevant evidence is likely to indicate that the employee will not be able to return to work in the near future, with or without adjustments, or that any adjustments are not reasonable in the circumstances.

 

 

 

The letter should also set out the date, location and timing of the meeting, state that the purpose of the meeting is to consider the employee's attendance record/sickness absence and that the outcome of the meeting may be dismissal. The employee should also be informed, in that letter, of their right to be accompanied.

2.         Meet with the employee

The meeting must take place after the letter has been sent and before any action is taken in respect of the employee. Employers should be careful to ensure that no definite decisions are taken before this meeting and that correspondence, minutes and internal memoranda do not indicate otherwise.

The employer should ensure that those present at the meeting understand the background to and purpose of the meeting and the procedure to be followed. The parties should be given an opportunity to raise and address any objections to steps taken to date. The history of the employee's absence and its effect on the organisation, and any actions previously taken to address the situation should be outlined, referring to any relevant documentation. The employee should then have an opportunity to put their case and outline any mitigating circumstances. The employer should sum up at the end of the meeting and endeavour to let the employee know when they can expect a decision.

 

 

 

Following the meeting a second letter should be sent to the employee confirming the employer's decision "without unreasonable delay" and confirming the employee's right of appeal.

 

Appeal Meeting

Employees should be given a timescale within which to notify their employer of any appeal and be asked to state their full grounds of appeal in writing. The employee should also be given the right to be accompanied to the appeal meeting and the employer must notify them of their final decision following the meeting.

 

 

 

Where reasonably practicable, the appeal should be dealt with by a more senior manager than the person who conducted the first meeting.

 

Possible reasonable adjustments

Adjustments may be appropriate in a situation where an employee has been on short or long-term sickness absence, or where an employee is injured or has a recurring illness or disability. Making appropriate adjustments would go towards discharging the employer's duty under the Disability Discrimination Act in the case of a disabled employee, and would also be part of a reasonable capability procedure in the case of an employee on long-term sickness leave:

 

• Staggered return to work.
• Varied start and finish times.
• Relocating an employee's workstation so as to remove any obstacles to efficient working.
• Continuing sickness pay beyond any contractual or discretionary policy, especially in circumstances where a short extension might facilitate an employee's return to work or prevent their health deteriorating.
• Re-allocating an employee's duties to colleagues either temporarily or permanently where the disabled employee experiences difficulties with them for a reason related to their disability.
• Purchasing equipment or software which assists an employee to carry out their duties.

It is advisable to agree with the affected employee that any adjustments will operate for an initial trial period, following which the parties should meet to review their effectiveness, carry out an assessment and discuss any changes which might improve their operation.

Claims a sick employee might bring:

 

An employer may be liable under:

 

• The Health and Safety at Work Act 1974 for failing to provide a safe system of work;
• Employers have also been held to be bound by an implied duty to provide a suitable working environment
• The tort of negligence for failing to prevent a reasonably foreseeable risk of physical or mental injury to the employee.
• The employer's duty not to act in such a way as to destroy the relationship of trust and confidence between the employer and employee which is implied into the employee's contract of employment
• That the employer has failed to make reasonable adjustments or discriminated against a disabled employee in such a way as to exacerbate an existing condition.

If you would like any further information on any staff sickness issues, please contact us.