Sickness Absence - HR Advice Guide For Employers

In order for an employee to be eligible for SSP, they must:

• Be classed as an employee or worker
• Have done work for the employer
• Have been ill for at least four days in a row (including non-working days), or are self-isolating, or sickness absence is due to a linked period of incapacity for work.
• Earn an average of at least £120 per week in the 8 weeks leading to the period of sickness absence from work.
• Give their employer the correct notice
• Give their employer proof of the illness if they have been off for seven days or more (for under 7 calendar days a Self Certificate is usually required)

Some workers will also qualify for SSP as "employee" in the context of SSP. SSP entitlement includes all those whose earnings are liable for Class 1 National Insurance contributions (NICs). For example, agency workers and those who are on zero-hours contracts can be entitled to Statutory Sick Pay.

Employers must pay SSP when an employee is sick for at least four days in a row (including non-working days). The first three days are called “waiting days”. However, waiting days do not apply if the employee is self-isolating or in a linked period of incapacity for work.

If the employee works and then goes home feeling unwell, this does not count as a sick day – even if they only worked for one minute. For example, if an employee becomes sick halfway through the shift, the day after their shift will count as the first sick day.

How long an employee can be on sick leave from work before they can be dismissed depends upon the employer establishing that there is no reasonably foreseeable return to work. This will usually require some form of medical evidence (such as a GP report or Occupational Health report) in order for the employer to establish a genuine held belief that there was no reasonably foreseeable return to work. Employers are not expected to keep a sick employee’s job open indefinitely.

Extended period of absences can be costly for employers and potentially disruptive to your business. There is a balancing act between being supportive and considerate for the employee who is sick, whilst also considering how a long-term illness might affect the rest of your employees and customers/sales.

If employees are off work for seven days or less, they do not need to give their employer any proof of sickness from a medical professional. Instead, when they return to work, an employer can ask them to confirm they have been off sick.

This is called “self-certification” and both employer and employee can agree on how the employee should do this. This can be via a “back to work” form or by sending details of their sickness on an email.

Generally speaking, for absences over seven days, employers can require their employee to provide medical evidence for the absence. This can be done in the form of a doctor’s “fit note” (formerly known “sick note”).

This fit note will detail the reasons why the employee is not fit for work. Employers can take a copy of the fit note, while employees keep the original.

Additionally, the fit note from the employee’s doctor or other medical professional, may state that they “may be fit for work”. If this is the case, employers should discuss any changes that might help the employee return to work. If there is no agreement on these changes, the employee may be treated as “not fit for work” again.

Yes, employers are allowed to have reasonable contact with employees while they are absent due to illness. Many employers are genuinely concerned with their employee’s health and would like to check in every now and then to see how they are doing. It is also wise to be kept up to date on the likely period of absence so employers can plan accordingly. It is also reasonable to ask for the reasons for the absence.

It is important that the contact is a good balance between the support and concern for the employee, the desire to secure a return to work as quickly and as safely as possible, while also giving enough space to allow the employee to recuperate without any unnecessary stress.

Getting in touch too often could seem overbearing and intrusive, and even result in allegations of harassment. Getting in touch too infrequently could leave the employee feeling isolated and devalued, while also leaving you unsure of the employees current situation and likely return to work information.

The amount you contact the employee will depend on the expected length of their sickness absence, the employee’s role, seniority, and the size and culture of your business. It might be that a regular telephone conversation once a fortnight may suffice if the illness is long-term.

Yes, employers can dismiss an employee whilst on long-term sick, but only after following a reasonable process. The potentially fair grounds for the dismissal would be on the basis of ‘capability’.

A fair dismissal process is required before any dismissal can take place, however. An employment tribunal will consider if an employer has followed the appropriate procedure, and will consider whether:

• The medical evidence being relied upon was up to date
• The employee was warned before they were dismissed, and therefore understood the seriousness of the situation
• The employer was shown any medical evidence of the long-term sickness and, where there is medical evidence, if the employee was asked for their input on that evidence
• The employee and employer disagreed on the medical evidence and, if so, if the employer could provide their own medical evidence
• A partial return to work has been considered
• Consider whether the employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal
• Where there is a private health insurance policy or Ill Health retirement policy in place, if there is, whether employer claimed under terms of the scheme
• All the necessary steps have been taken by the employer to accommodate any disability (if one exists)
• The employee was due to have any further treatment that might have improved their chances of returning to work

We would advise getting expert HR and employment law advice before considering dismissing someone who has been absent due to long-term sickness.

An employer can also potentially dismiss on the grounds of persistent short time sickness absence from work, normally this process would require moving through a process of warnings before a dismissal could be classed as fair. It is essential that a consistent approach is taken, following any absence policies the employer has in place. This absence management process is similar to a disciplinary in that it will need:

• Investigation in the first instance to establish the facts,
• Formal notice of an absence review meeting informing the employee of the right to be accompanied, giving the employee clear and detailed information on the number of absences and/or any patterns in absence, and
• Provide the employee with a copy all evidence being relied upon in advance of the absence review meeting.

In some cases, especially where the employee is ‘disabled’ in law this process/your absence policy may require reasonable adjustments.