In this second instalment of our trilogy of articles dealing with employment law issues surrounding sickness, we provide some key practical tips for employers. Employers need to think carefully about what to include in their sickness absence policy.
Practical points for employers on drafting sickness absence policies
Some key considerations are:
- The policy should clearly set out the sickness absence notification procedure: employees should be clear about how, to whom and by when they need to report their absence.
- Whether sick pay is contractual should be clearly stated. Note that generous contractual sick pay provisions can lead to malingering. It is always open to an employer to pay over and above the minimum entitlement.
- The policy should set out what documents employees need to provide when they are absent due to sickness and any other conditions that must be met for sick pay to be paid.
- In addition, all contracts of employment should contain a clause requiring employees to attend an examination with a specialist doctor or occupational health expert at the company’s expense if reasonably requested to do so – and to permit the company to view the subsequent medical report.
- Particularly where sick pay is contractual, the employer should reserve the right to withhold its payment if it has doubts about the genuineness of the employee’s sickness absence.
Keeping in contact with employees
Employers should aim to keep in contact with those employees on sick leave for more than a few days. Contact should be at an appropriate level. While this can depend on the employee’s role, the reason for their absence and the employer’s resources, our recommendation is to let the employee have your proposals for keeping in touch and to ask them whether they are happy with them or whether any adjustments to them are required, whether from the outset or at any future point. An employee who is off sick due to work-related stress, for example, may wish to elect someone they feel comfortable communicating with from the company. Some employees might want to continue to receive newsletters and invitations to events, whereas other will not.
If an employee indicates that they do not want any contact at all, you should let them know that you will still check-in with them from time-to-time and will update them of any key developments which could affect their employment. Adjustments may be necessary to redundancy or disciplinary procedures, for example, where employees are off sick on a longer term or frequent basis.
Withholding contractual sick pay
It is only possible to lawfully withhold contractual sick pay in circumstances set out in the employee’s contract of employment or the company’s contractual sickness policy, or where the employee has otherwise agreed in writing. Otherwise, if the employer withholds sick pay, this will amount to an unlawful deduction from wages under section 13 of ERA 1996. Withholding contractual sick pay without following the correct contractual procedure is also likely to amount to a fundamental breach of contract which may give rise to a constructive dismissal claim (as was seen in Singh v Metroline West Ltd [2022] EAT 80).
Where an employer thinks that an employee’s medical evidence is questionable, or the employer obtains alternative evidence which suggests that the employee is fit for work, it will be necessary to look at the exact wording of the provision in the contract to determine if the employer can withhold sick pay. For example, in Guthrie v Scottish Courage UKEAT/0788/03 the contract stated that sick pay was dependent on “management being satisfied that the sickness absence is genuine”. The employee’s GP believed the employee was not yet fit to return to work, but the company’s doctor disagreed. The Employment Appeal Tribunal upheld a tribunal’s decision that the company had unlawfully refused sick pay. The test, according to the contract, was not whether the employer’s medical advisers were of the opinion that the employee was fit for work, but whether the employer was satisfied that the sickness absence was “genuine”. In the absence of any evidence that the employee had deceived her GP, there was no rational basis for the employer to conclude it was not genuine.
In Merseyrail Electrics 2002 Ltd v Taylor UKEAT/0162/07, the employer relied on a clause in the employee’s contract that sick pay may be withheld “if there is any doubt that the absence is due to reasons other than health or personal accident”. The tribunal agreed that while the employer might have been in doubt to start with about the reason for the employee’s absence, that doubt was removed as soon as the employee provided evidence from her GP that she was suffering from an “acute stress reaction”. The tribunal went on to say that unless or until there was further medical evidence to the contrary, the employee was entitled to sick pay on the basis of her GP’s assessment. Therefore, it is up to an employer to arrange a medical investigation of its own if it doubts the reason for an employee’s absence, where the employee has already provided medical certification of the reason for their absence.
Return to work interviews
Although there is no legal obligation to and whilst some employers may not choose to, ACAS recommends that employers carry out return to work interviews with an employee after all sickness absences and this is seen as good practise. Depending on the length of absence the interview does not have to be long and formal but may assist in reducing a company’s short-term absences. This is because, if employees are aware they are being monitored and employers raise concerns about their frequent absences, employees might feel more accountable and concerned for their job and be less likely to take short term sickness absences, unless essential. A short return to work interview can also be a helpful way for employers to understand any underlying reasons for the employee’s absence. This could be related to situations at home or work and could be a physical ailment or mental health condition the employer is unaware of.
Where an employee has been absent from work for a longer period, a return-to-work interview is advisable before their proposed return. The employer will need to assess the employee’s fitness to return, possibly to the physical workplace or remotely 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.
The forthcoming third and final article in this series deals with the difficult issue of long-term sickness together with associated risks such as claims of disability discrimination.
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This article was written by Simren Savjani with assistance from Dean Jones, Harriet Bowtell and Liza Knight.