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Sickness Absence and Ill Health

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Sickness Absence and Ill Health Overview 

Sickness Absence

All employers should be prepared to expect a certain level of sickness absence. Most employees will need to take time off work at some point due to illness or injury.

An employer should expect sickness absence to occur, however, an effective and fair process for managing it appropriately will be helpful and can reduce levels of sickness absence. In appropriate cases it may be necessary for an employer to consider dismissal of an employee on the grounds of ill health capability, in such cases a fair and reasonable procedure is essential to the fairness of such a dismissal.

Absenteeism and Unauthorised Absence

Absence for reasons other than genuine sickness or other authorised absence is a misconduct offence and is dealt with separately see Unauthorised Absence Overview [FS4.01]. Instances of genuine sickness absence where an employee has failed to comply with required sickness absence reporting procedures can also amount to unauthorised absence and warrant potential disciplinary action.

Sick Pay

Qualifying employees who are absent from work due to sickness or incapacity are entitled to receive a minimum weekly payment known as Statutory Sick Pay (SSP). The level of SSP is determined by the government and reviewed annually, usually in April.

There is no right for an employee to receive any wage or salary in addition to SSP during sickness absence unless this right exists by virtue of the employment contract or custom and practice.

For further information see Fact Sheet on Sick Pay [FS3.02].

Managing Sickness Absence

The proactive management of sickness absence is always advisable but such management must be undertaken sensitively and fairly and in accordance with your organisation’s own sickness absence management procedures, if applicable.

It is essential to be mindful of potential disability issues to avoid unlawful discrimination.

The aim of any sickness absence management process should be to facilitate the employee’s return to work, if appropriate with reasonable adjustments in place such as a phased return or altered duties or terms and conditions. In some situations a successful return to work may not be possible and in those cases it is necessary for the employer to consider dismissal on the grounds of ill health capability as a last resort.

For further information see Fact Sheet on Managing Sickness Absence [FS3.03].

Disability Discrimination

An employee who has been absent from work due to illness may be protected by disability discrimination laws

under the Equality Act 2010. Even an employee with no history of absence from work may be a disabled person if they meet the required criteria for a disability under the Equality Act 2010.

To be able to claim disability discrimination an employee must have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities.

If an employee is disabled within the meaning of the Equality Act 2010, the employer must be aware of the following forms of disability discrimination:

  • Direct discrimination. Treating them less favourably, because of disability, than others whose material circumstances, including abilities, are not materially different.
  • Discrimination arising from disability. Treating them unfavourably because of something arising out of their disability, unless that treatment is a proportionate means of achieving a legitimate aim.
  • Indirect discrimination. Applying a provision, criterion or practice (PCP) that puts the employee (and other persons with that disability) at a particular disadvantage, unless that PCP is a proportionate means of achieving a legitimate aim.
  • Reasonable adjustments. Failing to comply with a duty to make reasonable adjustments where these would help overcome a substantial disadvantage.
  • Victimisation. Dismissing or subjecting an employee to detriment because they have done a "protected act" such as complaining about discrimination or supporting another employee in their complaint.
  • Harassment. Unwanted conduct related to disability, which has the purpose or effect of violating the employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them

See Fact Sheet on Disability Discrimination [FS3.04].

Medical Evidence

In situations where an employee has a medical condition, illness or injury which may affect their ability to perform their role it may be desirable or necessary to obtain expert medical opinion. A failure to obtain such medical information in appropriate circumstances may give rise to risks in respect of health and safety and personal injury claims by employees.

In addition, failure to recognise and take action in response to an employee who is struggling to perform their role due to a medical condition could give rise to unfair dismissal, constructive dismissal, disability discrimination and other employment related claims. In most cases of dismissal on the grounds of ill health capability it will be fatal to the fairness of a dismissal if a decision is made without the benefit of appropriate, up to date medical evidence.

For information on when medical evidence should be sought, types of medical evidence available and methods of obtaining such evidence see Fact Sheet on Medical Evidence and Access to Medical Reports [FS3.05].

Health at Work

Employees who attend work while sick may pose a health and safety risk to themselves or others. Employers have a duty to provide a safe working environment and therefore must evaluate situations where they are (or should be) aware that an employee is sick or on medication that may affect their ability to safely perform their duties.

Where a potential issue is identified the employer should consider a temporary suspension from some/all duties on medical grounds pending medical advice. See Suspension on Medical Grounds Letter [SL3.24]. This is a complex area of law and specific legal advice should be obtained where you identify that an employee presents a potential health a safety risk.

  1. Sickness Absence and Annual Leave

The effect of sickness absence on annual leave is a highly complex and much litigated area of law. Key points to be aware of include:

  • Workers on sick leave continue to accrue annual leave.
  • Workers who fall sick before or during annual leave are generally entitled to cancel that leave and take it at a later date (for a sample letter see Letter to Employee Regarding Sickness During/Before Annual Leave [SL3.22]).
  • If a worker remains sick until the end of the relevant leave year they should be permitted to carry over any remaining statutory holiday into the following leave year. Please note that there is not necessarily a right to carry over for an unlimited period of time and limits can be set by employers (case law suggests that limiting carry-over to 15 months past the end of the leave year in question will be lawful but would need to be expressly included in contractual documentation to be capable of being enforced). Case law indicates that in the absence of an alternative limit set by the employer this may in any event be limited to a period of 18 months following the end of the holiday leave year. 
  • It is possible for workers to take annual leave during sickness absence i.e. effectively designate part of the long term sickness absence as annual leave.
  • Employers cannot force sick workers to take annual leave during sickness absence. It is possible to remind workers of their annual leave entitlement and suggest or request that they take it during their long term sickness absence.
  • Workers are only entitled to statutory holiday pay if they actually take statutory holiday or give notice to their employer that they wish to take such holiday.
  • Payment in lieu of statutory holiday entitlement is only permitted on termination of employment.

It is important to note that the relevant case law on this subject relates to the 4 weeks’ paid annual leave entitlement under the European Working Time Directive, rather than the additional 1.6 weeks’ conferred on workers by the domestic legislation (The Working Time Regulations 1998) or additional contractual annual leave entitlement. However, it is likely that unless the government make changes to clarify this position the additional 1.6 weeks’ will also be protected.

A well drafted policy can help to prevent abuse by employees of sickness absence, see Sickness Absence Policy [P3.01] as an example.

Due to the complexity of this subject matter and the need to consider each specific case on its facts employers are advised to take legal advice in relation to matters concerning the interaction between annual leave and sickness absence.

Pregnancy Related Absence

From the date of conception up until the end of the statutory maternity leave period pregnant employees benefit from an additional level of protection. During this “protected period” it is unlawful to dismiss or subject the employee to any detriment as a result of pregnancy or maternity-related illness.

For the purposes of any standard policy or procedure which may lead to any action being taken or detriment to the employee, absences during the protected period due to pregnancy or maternity related illness must therefore be discounted. Relevant policies or procedures would include: sickness absence management procedure triggers; redundancy selection criteria; performance and pay reviews.

Any pregnancy-related absence in the last 4 weeks before the expected week of childbirth will automatically trigger statutory maternity leave and statutory maternity pay from the following day. SSP payments will stop once statutory maternity pay has been triggered.

Sickness Absence and Notice Pay

Special rules apply to notice pay when an employee is absent due to sickness during their notice period.

If the contractual notice period that the employer must give to the employee is at least 1 week more than the employee’s statutory notice entitlement (based on length of service and subject to a maximum of 12 weeks notice after 12 years’ service) then the employee will simply be entitled to SSP and, if eligible, CSP during the notice period until they have exhausted the entitlement or the notice period comes to an end, whichever is sooner.

If the contractual notice period that the employer must give to the employee is not at least 1 week more than the employee’s statutory notice entitlement then special rules apply which require the employer to pay the employee full pay during their notice period where the employee is off sick, even if they have exhausted SSP and CSP.

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.

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