Sick and tired
Labour & European Law Review Issue 101 - June 2005 29 June 2005
According to the Chartered Institute of Personnel and Development, sickness absence costs employers about £567 per employee every year. This equates to about nine working days for every member of staff per year.
Hardly surprising, then, that managing sickness absence at work often leads to misunderstandings and recriminations, sometimes even dismissal.
In this article, a solicitor from Thompsons' Employment Rights Unit in Newcastle, highlights some of the most common scenarios facing trade union advisors whose members find themselves in the firing line.
What information should employers provide?
Although employers are not obliged to offer a sick pay scheme, they have to give employees details of any contractual terms or provisions about incapacity for work due to illness or personal injury. These must be given in writing within two months of starting a new job. If the employer fails to provide this information, an employee can (in some circumstances) claim between two and four weeks' pay at an employment tribunal.
Can the employer make contact during sick leave?
Some employees feel harassed by their employer when they are on sick leave because they are in contact so often. Others, however, complain that they feel abandoned because their employer never gets in touch.
There are no hard and fast rules, but employers need to use tact and common sense if someone is off sick. Likewise, trade union advisors need to be alert to the fact that an employer may well be harassing an employee if he or she is ringing every day asking when the person is going to return to work.
Trade unionists should, ideally, negotiate a sickness absence policy governing when and how often the employer can make contact with someone on sick leave. It should also determine whether the employer will proceed with disciplinary or grievance issues during an employee's sick absence - an area as yet unresolved by the law.
For instance, in Harlow v General Healthcare Group Ltd (2002, All ER (D) 84) the employee's grievance was put on ice by the employer due to sick leave. The EAT said this was fine. However, in Hill v Staffordshire (2003, All ER (D) 310) the EAT upheld the employer's decision to continue with disciplinary proceedings while the employee was off sick.
What happens to holidays on sick leave?
If an employee falls sick during a period of holiday, they cannot claim that day back from their employer as sick leave (unless their contract says so).
However, does statutory holiday entitlement accrue while a worker is on sick leave? The EAT said that it did in the case of Kigass but the Court of Appeal has just overruled it in Inland Revenue v Ainsworth. Unfortunately this decision is not entirely clear, but it appears that entitlement to holiday may be suspended during periods of long term sick leave. The union is appealing the decision.
Remember, though, if an employee's contract contains no provisions preventing them from accruing or taking holiday entitlement on sick leave, they are entitled to paid holiday at the full rate - a valuable benefit if sick pay has run out, or been reduced.
Trade union advisors should be careful to ensure that employers using a measure known as the Bradford Factor for identifying short term absence do not treat this as generating a separate spell of absence.
Can the employer refuse to allow a return to work?
Sometimes employers refuse to allow an employee to return to work until the occupational health doctor has certified them as fit to do so, even though their own GP has given them the all-clear.
If that happens, the employee should be paid at their normal rate (as opposed to sick pay) as the employee is being prevented from working by the employer.
When does the DDA apply?
As the period of sickness absence increases, so does the possibility that the person will be protected under the Disability Discrimination Act 1995 (DDA). If the Act does apply, the person's absence on long term leave must be discounted for certain situations (such as redundancy).
In addition, the employer may have to make some reasonable adjustments to facilitate a return to work. Two recent cases illustrate the point.
In Archibald v Fife County Council (2004, IRLR 651) the House of Lords said that the employer should have moved the employee to a vacant post even if it was more senior to her previous one and even if there was a better candidate.
In Meikle v Nottinghamshire County Council (2004, IRLR 703), the Court of Appeal said that the duty to make reasonable adjustments could include a duty to pay employees during sick pay periods (even if they are only entitled to reduced pay or SSP), if the failure to carry out reasonable adjustments caused the sick leave in the first place.
To constitute a "mental impairment" under the DDA, the condition must be clinically well-recognised by a body such as the World Health Organisation (although this requirement will be removed by the end of 2005 under a bill going through Parliament). To constitute a personal injury, work-related stress has to have been something that an employer could have reasonably "foreseen". This can be very difficult to prove (see the conjoined cases of Hartman and ors.
What about suspension?
It is not uncommon for a suspension to lead to a period of stress-related sick leave. Generally, however, it is not in the interests of the employee to go off on sick leave. Sick pay usually runs out at some point (or future entitlement to it may reduce), leaving the employee without an income unless they can claim benefits. By contrast the employer is usually obliged to provide full pay during the period of the suspension.
Can empoyers spy on employees on sick leave?
The simple answer is yes. If an employer thinks his or her employee is swinging the lead, they are entitled to carry out surveillance of them during sick leave. Whether this would amount to a breach of human rights or the duty of mutual trust and confidence will depend on the facts of the case, but one thing is certain - it is an increasingly common practice McGowan v Scottish Water, 2005, IRLR 167.
How does sick leave impact on redundancy?
Attendance and/or sickness absence is often a criterion in redundancy selection. This is not unreasonable, but it is discriminatory for employers to penalise employees for certain absences such as pregnancy related or disability related illness. These periods should therefore be discounted.
Are employees entitled to a period of paid notice?
Employees on sick leave are entitled to be paid at their full contractual rate for the duration of their notice period, whether or not their sick pay has run out. They can bring a claim for unlawful deduction of wages if the employer fails to pay for the period of notice.