There aren't many of us who can say we've never had a day off work because of sickness. Most people fall ill at some point, yet there is no obligation on employers to provide anything other than statutory sick pay.

In this article, the head of Thompsons' Employment Rights Unit in London and the South East, looks at the protection the law provides in this complex area.

What information are employees entitled to receive?

Every employee is entitled to receive written particulars of their employment (sometimes called a section 1 statement from the requirements set out in Section 1 of the Employment Rights Act 1996). These 'particulars' must detail any terms and conditions relating to 'incapacity for work due to sickness and injury, including any provisions for sick pay'.

Where should employees make a claim about sick pay?

The recent case of Taylor Gordon & Co Ltd v Timmons (see the news section for more details) has said that if there is a dispute about statutory sick pay, claimants have to make a claim to the Inland Revenue as employment tribunals do not have jurisdiction.

What about PHI schemes?

Some employers offer private health insurance schemes which can be quite generous and have led to litigation. In one case (Aspden v Webbs Poultry & Meat Group Holdings Limited 1996, IRLR 521), an employee was entitled to benefits during a period of ill health, but only as long as he remained on the books.

Unusually, the court was prepared to imply a term into the contract that the employer should not dismiss the employee during the period of his illness, so as not to deprive him of those benefits.

The High Court has said (Marlow v East Thames Housing Group 2020, IRLR 798) that where an employer provides the benefit of a PHI scheme and the insurer fails to pay, there is an implied obligation on the employer to pursue the insurer for payment, up to and including litigation.

How do employers monitor sickness absence?

Some employers have introduced policies that set out the steps to be taken in the event of sickness. For instance, they often state who an employee should report to and when; whether there is a requirement to provide medical certificates; the maximum periods of absence in a fixed period; return to work interviews; and systems of warnings and penalties in the event of non compliance.

Can sickness policies be discriminatory?

The danger is that although the policy may seem neutral, it can be discriminatory. For instance, pregnancy related absences should not be included in these policies as that would amount to sex discrimination.

Equally whilst many disabled people have sickness records which are no worse than other employees, employers should be careful not to include, say, disability related absences for rehabilitation in the policy.

Are the policies contractual?

Some will be contractual, but others won't. It is important therefore to consider whether the policy is incorporated into someone's contract before deciding whether the employer is bound by its terms and whether they can unilaterally change it.

In Wandsworth London Borough Council v D'Silva 1998, IRLR 193, an employer tried to unilaterally change the terms of a sickness policy. Mr D'Silva said this was a breach of his contract. The Court of Appeal held that because the policy was only a statement of good practice, the employer could alter the terms without the agreement of the employees.

Does the employer have to obtain a medical report?

Capability (or rather the lack of it), is one of the potentially fair reasons for dismissing an employee under unfair dismissal law. Unfortunately, a lot of people are dismissed because of ill health.

But before the employer can dismiss someone on that basis, they have to find out their true state of health. This often involves getting a medical report from the employee's doctor or consultant, to which the employee has to consent.

Can employees see their own medical records and reports?

Under the Access to Medical Reports Act 1988, employees are entitled to see the report before it goes to the employer and to withhold consent if they want. The employee can also correct any errors.

The legislation says that the medical report has to be by a medical practitioner who is or has been responsible for the clinical care of that individual. Reports obtained from company doctors are unlikely to be covered by the Act.

The Access to Health Records Act 1990 applies to health records made after 1 November 1991. Individuals have a right to apply for access to records held by a health professional. These rights also apply to company doctors.

What happens if the employee does not consent?

If an employee refuses to give consent then the employer can only proceed on the basis of information already available.

In the case of extended sickness absence, this means that a medical practitioner cannot give an opinion about a return to work date, light duties or any reasonable adjustments which may need to be made for someone who is disabled for the purposes of the Disability Discrimination Act 1995.

What else should the employer do before dismissing someone?

Once the employer has found out the current condition and any prognosis for the future, they must then consider the past sickness record, the requirements of the business and whether there are any alternative positions available.

In Spencer v Paragon Wallpapers Ltd 1977, ICR 301 the court said 'the basic question that has to be determined when looking at the fairness of the dismissal is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?'

The employer should also consult the employee and their representative before dismissal (East Lindsay District Council v Daubney 1977, ICR 566).

As far as alternative employment is concerned courts have held that it is not unreasonable to offer alternative employment at a reduced rate of pay where this is the only suitable alternative employment available (British Gas Services Ltd v McCaull 2001, IRLR 60).

It might be unfair to dismiss if the employee is likely to return to work imminently. There is, however, no obligation on the employee to volunteer information about their prospects of recovery (Mitchell v Arkwood Plastics (Engineering) Ltd 1993, ICR 471).

What about short term illness?

If an employee has a series of short absences caused by unconnected minor ailments, there is little point in the employer requesting a medical examination.

Instead, the employer should tell the employee what level of attendance they now expect, the period within which it should be achieved and that dismissal may follow if there is no sufficient improvement (International Sports Co Ltd v Thomson 1980, IRLR 340; and Lynock v Cereal Packaging Ltd 1988, ICR 670).

The situation should be monitored to see whether absence is reduced to a reasonable level. Further warnings might be appropriate in borderline cases.