According to the Office for National Statistics (ONS) (2021), an estimated 118.6 million working days were lost in 2020 because of sickness or injury in the UK labour market, the equivalent of 3.6 days per worker. In comparison, the Health and Safety Executive (HSE) (2020) reported a lower estimate for 2019–2020 (just 38.8 million days), but that figure was only based on work-related ill health and non-fatal workplace injuries. Nonetheless, by further scrutinising their data, the ONS (2021) found that sectors such as health and social work and key public services saw annual sickness rates of 3.5% and 1.3%, respectively.
Sickness levels are also likely to increase as the UK moves from the pandemic to a perpetual period of living with COVID-19. However, despite the statistics, absences can have quite an impact. So, where does a clinic stand when sickness absences are harming its business?
The law speaks
The basis for any discussion on this issue is what the law prescribes. Mark Stevens, a senior associate at law firm VWV, says that employees who are absent from work are protected and can take time off if they are unwell. It is for this reason that Arwen Makin, senior solicitor at ESP Law, recommends organisations have a sickness absence policy that outlines the expected reporting requirements, information on sick pay, absence trigger points and the overall absence management process. She also states that ‘businesses do not have to put up with persistent absence, particularly if it is going to suffer as a result’. Dismissal is not unreasonable in the right circumstances.
However, not all situations are treated equally, which is why employers must be mindful of employees with a disability. According to Makin, ‘Dismissal of a disabled team member can be a much riskier process, as a dismissal without a proper process can be discriminatory’. Discrimination claims have no upper limit on awards that can be made. Where disability is involved, Stevens says that employers are required to put in place reasonable adjustments to make sure that a disabled employee is not substantially disadvantaged when working.
Checking up on employees who claim to be unwell
As with any relationship, there should be a strong basis of trust between employer and employee. Makin says that there should then ideally be a presumption on the part of the employer that employees have a genuine reason for their absence. She notes that the law allows employees to self-certify for the first 7 days, after which, they are obliged to provide a ‘fit note’ from a doctor. When an employee is absent, Makin says that, ‘during this period, it is important that employers keep in contact, not only from a welfare perspective, but also to gauge when an employee might return to work’. Similarly, Stevens says that employers should ‘keep a record of their conversations and in any contact with the employee; an employer should attempt a balance between offering support and maintaining sufficient distance so that employees do not feel pressured’.
Of course, where suspicions are aroused of dishonesty, there is nothing to stop an employer from investigating further. Here, Makin points out: ‘employers will—in this digital age— often check social media pages to try and piece together the events that may have led to time away from the office, or to corroborate their account’. Furthermore, Stevens cautions, ‘employers should be careful not to jump to conclusions about whether an employee is abusing its sickness system. They should base any decisions on medical evidence received from the employee's doctor, the employer's doctor or occupational health’. Makin further states that, ‘if an employee is found to have been dishonest, it is likely to equal gross misconduct, which can lead to dismissal without notice’.
» An important policy matter for the employer to determine is whether they will only pay SSP or provide for contractual sick pay in respect of a period of sickness absence that replaces a period of annual leave «
Genuine illnesses should be handled carefully
In some situations, an illness will progress to the long term and, in these cases, employers should tread very carefully. For Stevens, if an employee is suffering from a progressive illness, employers should act sensitively: ‘A meeting should be held between employer and employee and it should cover the likely date of return, the employee's prognosis, and whether adjustments could be made such as flexible working’. A point he is keen to make is that employers must also be aware that a long-term illness could also amount to a ‘disability’ under the Equality Act 2010 and, therefore, the employer should explore reasonable adjustments to assist the employee. Makin emphasises that a person ‘can be ‘disabled’ under discrimination law if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal, day-today activities’.
Another option put forward by Stevens is to consider taking advice from an occupational health advisor, as well as medical evidence from the employee's own general practitioner (GP) or consultant, if necessary. He says that employers are expected to bear the cost of this. He also suggests that ‘contracts of employment and sickness procedures specify that the employee may be required to attend a medical examination in certain circumstances’.
Pay and contractual rights during long-term sickness
There are accounts of individuals off on long-term sick leave whose contracts were not written appropriately; this left the employee contractually entitled to a car, laptop and phone. In such instances, the firm will ultimately have to hire replacements, resulting in a doubling of costs. This is because employees are entitled to all contractual rights while on sick leave.
Makin urges employers to remember that ‘there is an implied duty of mutual trust and confidence in every contract of employment and the withdrawal of a benefit can lead to its breach. This, in turn, can lead to the risk of not only a disability discrimination claim, but also a constructive dismissal claim’. Consequently, Stevens recommends an absence policy that requires benefits to be retained for a specified number of weeks. In the absence of such a provision, it is likely that an employer may not be able to take back such benefits. ‘In addition, care should be taken if the sick leave is due to a disability, as removal of a benefit could amount to less favourable treatment because of a disability and therefore discrimination’, he says.
As to what a sick employee receives, Stevens says that, ‘if they are eligible, employees are entitled to Statutory Sick Pay (SSP) during periods of sickness absence. They are entitled to £99.35 from 6 April 2022 per week if they are too ill to work, for up to 28 weeks’. SSP is paid after someone has been off for 4 or more days in a row (including days that they are not required to work). This position was different during the COVID-19 pandemic; however, since March 2022, the 3-day waiting period is now required before SSP is paid.
There is another matter to be considered here: the payment of sick pay beyond the statutory minimum. An important policy matter for the employer to determine is whether they will only pay SSP or provide for contractual sick pay in respect of a period of sickness absence that replaces a period of annual leave. It is suggested that, where the employer pays contractual sick pay, management may wish to devise separate rules to cover sickness absence that overlaps with planned holiday or that arises while the employee is on holiday. However, an employer wishing to change its policy on contractual sick pay should be aware that this will amount to a change to employees’ contracts, and it should, therefore, seek the agreement of the employees affected before implementing any change.
Holidays and sickness: imperfect bedfellows?
Despite what might be thought, the relationship between sickness absence and annual leave is not expressly addressed in either the Working Time Directive or the Working Time Regulations 1998 (HSE, 2003). The European Court of Justice has had to interpret the Working Time Directive on a case-by-case basis to determine the key principles governing the interaction of holiday and sickness absence. In essence, European case law has found that employees cannot be sick and on holiday at the same time; furthermore, they must not be made to take holiday while off sick.
Lastly, Stevens says that ‘employees are able to rearrange pre-booked statutory holiday if it is affected by sick leave’, and they may be able to carry the affected days over to the next leave year. However, where the illness began during the period of annual leave, it would be reasonable to require the worker to provide proof of illness during the holiday. Notably, Stevens says that this only applies to basic 4-week holiday entitlement under the Working Time Directive.
In summary
Sickness and time off work are inevitable. The law is very prescriptive on employee rights. In the meantime, employers who are tactless with the way they approach such matters are highly likely to end up in an employment tribunal. This can be very expensive, especially if discrimination is alleged.