Sickness Absence: your rights and responsibilities as an employer

By 9 November 2023 No Comments

Dealing with employee absence – both frequent short-term absence and longer-term absence – is a regular feature of managing people but you may not be aware that, as an employer, you have rights as well as a variety of legal responsibilities – primarily under the Equality Act, the Employment Rights Act and the Health and Safety at Work Act. 

We also know that employees are much more likely to return to work safely and productively following long-term sickness absence if they are well supported by their employer both during their absence and on their return.

So, what do you need to consider?

Policies and Procedures

Employers should have policies and procedures for managing sick leave and these should be available for all employees to reference – usually in your Employee Handbook.  Having clear and transparent policies about managing absence ensures people know what to expect and that they are treated consistently and fairly.  Recording and monitoring sick leave can help an employer to identify any trends or to manage risks if appropriate.     

Employers may need to make ‘reasonable’ adjustments to standard processes for managing absence when their employee has a condition which is classed as a disability under the Equality Act 2010 (i.e. a physical or mental impairment that has a long-term, adverse impact on their ability to carry out day to day activities) as this may place the employee at higher risk of absence than their peers.

Notification of Absence

Your expectations around notification of sickness absence should be set out in your policies and procedures and you should expect your employees to comply with your requirements. At the very latest you should receive notification from your employee before their usual start time but it is common to require employees to notify the employer that they are unwell at least 30 minutes before they are due to start work, by telephone rather than by text message/WhatsApp message etc.

It is important to note that failure to comply with any of the requirements set out in your policies and procedures may well be considered as misconduct and warrant action under the terms of your disciplinary procedure.

Certification and The Fit Note

An employee should self-certify their sickness for the first 7 calendar days of their absence. From the 8th day of absence onwards, they will need a Fit Note from the medical professional who is caring for them. A Fit Note gives 3 possible options:

  1. That the employee is unfit for work.
  2. That the employee is fit for work.
  3. That the employee may be fit for work if adjustments can be made to enable them to return.

If the medical professional indicates that the employee is not fit to work for a certain period of time, the Fit Note provides evidence for sick pay procedures and a copy can be kept with the employee’s records.  If the Fit Note states that the employee may be fit to work, the employer may or may not be able to make the changes which would facilitate the return to work and there is no requirement on them to do so if it is not practicable.

If the employee wishes to return to work before the expiry of their Fit Note, they should ask their medical professional to issue a new Fit Note stating that they are now fit for work.

What if the employee is sick whilst on holiday?

If the employee becomes sick during their holiday leave, they are entitled to rearrange their holiday for another date later in the year. In practice this means that you will pay them sick pay rather than holiday pay for the period during which they were ill.

The employee will still need to follow normal sickness absence procedures, including reporting to their line manager and certificating their absence appropriately, otherwise they may not qualify for sick pay.

Supporting an employee during absence

It is both your right and your responsibility to maintain ‘regular’ but sensitive contact with an employee while they are absent from work, whether they are off for a day, a week, a month or longer.  In cases of short-term absence, it is usual to expect the employee to make daily contact but, when the employee is off longer-term, the frequency of such contact should be agreed on an individual basis, depending on the circumstances. Contact should focus on their health, safety and wellbeing and can often help reduce feelings of isolation from work.  In some circumstances an employer can offer services such as an employee assistance programme (EAP) with counselling, or physiotherapy, which could aid recovery and reduce length of absence.  In the case of long-term absence, the contact with the employee should also involve planning their return to work when this is appropriate, with support if required.  An occupational health referral could also be considered to gain advice on fitness for work and adjustments to support an employee when they return to work. 

Returning to work after short-term absence

It is a good idea to hold a return-to-work meeting after every period of absence – to welcome the employee back to work, to confirm the reason for their absence and to ensure they are fit to return.

The return-to-work meeting also provides an opportunity for you to discuss any concerns you may have about patterns or frequency of short-term absence and paves the way for disciplinary action if this is appropriate.

Returning to work after long-term absence

It is a good idea for an employer and employee to meet prior to the employee returning to work after a period of long-term absence.  The employee may well feel a little anxious about returning and being told about any updates at work which have occurred during their absence will help to identify any concerns or support needs they may have.  If adjustments have been requested by the employee or advised by occupational health or a medical professional, these should also be discussed.  If there has not already been a referral to occupational health and there is any uncertainty about fitness for work or suitable support, it may be appropriate to do a referral at this stage. 

What about mental health?

Mental health is as important as physical health and should be treated in the same way in terms of absence management.

Employees may experience mental health issues for various reasons that an employer cannot control but there are also work-related reasons for mental health problems and, as employers you have a duty of care for their employee’s health and wellbeing, you should aim to recognize and address workplace pressures that contribute to mental health issues.

The law provides protection against discrimination for employees who suffer with mental illness in the same way as those who suffer with physical illness, so your obligations are the same to try to support employees who are struggling with mental health issues if you are aware of them.

Does an employee have to disclose a medical condition to their employer?

Whilst it would be helpful for the employer to know, employees have no legal obligation to disclose medical conditions or illnesses to their employers. An employee who consciously chooses to disclose sickness or medical conditions to their employer is entitled to respect and compassion.

However, if an employee lies about a medical condition or fails to disclose something that could affect their ability to do a job, it would usually be reasonable for the employer to proceed with either disciplinary action or dismissal, However, please seek HR advice first!!

Can I dismiss an employee who is off sick?

Ultimately, when an employee has exhausted their entitlement to sick pay, where it is not practicable to wait any longer for them to return to work, where any reasonable adjustments have been addressed and either no alternative employment can reasonably be offered or such offers have been declined, it will usually be considered fair to dismiss the employee on the basis of their capability to do the job for which they are employed. Any such dismissal will be with appropriate notice or pay in lieu of notice. Again, please seek HR advice first!!

In Summary

The law around sickness absence (both physical and mental health) is complex and there is a large degree of protection against unfair treatment for employees.

My advice is simple: seek guidance from an HR professional to ensure your policies and procedures are up to date and in line with legal requirements, ensure you follow them and, if you are in doubt as to what you should be doing at any stage, shout – that’s what we are here for!!

This guest blog was written by Rosemary Darby-Jenkins, a Director of Signpost HR Solutions.

Note: Managers and business owners are often uncertain about how best to approach mental health issues. Mental health first aid training can help. Alternatively, Rosemary has a half-day module on Managing Sickness Absence including Mental Health Awareness which is part of her Management and Leadership Programme. This is worth doing – ideally as part of the full programme, but, if not, it can be done in isolation as a one-off module.

Mental Health First Aid in the Workplace

Leave a Reply