Legal Effect of sickness absence
An employee who is absent due to sickness remains an employee until either they resign or the employer dismisses them.
Their sickness absence does not affect their entitlement to holiday pay.
They are not required to work, but do have a duty to remain contactable by the employer and to keep the employer informed.
An employer is entitled to require the employee to notify them by a particular time if they are going to be off sick.
An employer is entitled to ask for a self certification form if the employee’s sickness lasts more than 3 days and for a doctor’s note if it lasts more than 1 week.
If an employee’s contract does not provide for them to be paid whilst off sick then they are entitled to Statutory Sick Pay from the 4th day of sickness absence for a period of up to 28 weeks (after which they need to claim Incapacity Benefit).
An employer is entitled to seek information from an employee about their sickness and require them to attend meetings (if the employee is well enough to attend a meeting).
Disability and Reasonable Adjustments
If an employee has a disability, the employer should consider whether there are any “reasonable adjustments” which can be made which would enable the employee to return to work. In appropriate cases these might include allowing the employee to work from home or temporarily altering the working hours or allowing a “phased return” to work. For further information see Disability Discrimination
Dismissing an employee who is off sick
An employee who is off sick can still be dismissed and that dismissal will be fair provided the employer has a fair reason and acts reasonably by following the correct procedure. See “Unfair Dismissal” and in particular dismissal on the grounds of “Capability.”
To dismiss fairly it is normally necessary for an employee to be invited to a meeting. This should still be done, but in many cases the employee will be unable to attend a meeting. The employer should consider alternatives such as:-
1. Postponing the meeting if the employee is likely to be well enough to attend a meeting in the near future.
2. Arranging a home visit to meet at the employee’s home (this would normally be presented as an option to the employee)
3. Allowing the employee to send someone on their behalf to attend the meeting
4. Conducting the meeting by way of a telephone call.
Dismissing an employee because of sickness
An employee who is off sick for a prolonged period of time can be fairly dismissed if they are unlikely to be well enough to return to work within a reasonable time.
What amounts to a reasonable time depends on the nature of the job, the specific difficulties encountered by the employer in covering for the absence and the size and administrative resources of the employer.
However, even where an employer is easily able to cover the absent employee’s work and even where it costs the employer nothing to keep the job open, an employer is not expected to have to keep the job open indefinitely.
Where the employer has caused the employee’s sickness
In some cases, the employee’s sickness absence may have been caused by the employer, for example due to an industrial accident or industrial disease. This does not mean that the employer cannot fairly dismiss, although if the employee is claiming damages for the injury in a Court case they will also be able to claim their loss of employment if they are dismissed.
In cases where the sickness absence is caused by the employee’s treatment at work, the employer will be expected to investigate this and seek to resolve this before considering dismissal.
Frequent short term sickness absences
An employee who has frequent short term absences can be dismissed fairly even if no one absence would be long enough to justify dismissal on its own. Before an employer can dismiss for this reason the employee needs to be told what level of sickness absence is not acceptable and given the opportunity to improve their sickness absence levels.
The employer should investigate whether or not the employee has a disability. If so, then it might be a “reasonable adjustment” for the employer to discount any sickness absences which are related to that disability. For further information see Disability Discrimination.
Some employers have a sickness absence management procedure which states the level of sickness absences which can be tolerated and provides a series of warnings to operate if the rate of sickness absence does not improve. The final stage is dismissal. This has the advantage to both parties of making it clear the levels of sickness absence which can be tolerated and the consequences of sickness exceeding those levels.
Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.