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Understanding when an employer may call time on sick leave

Published 18 February 2019

Being forced to call into work sick can be a time of genuine uncertainty for an employee and an employer.

How long the illness will last and what impact it will have on the workforce and productivity will understandably be concerns for all parties.

If it is a short-term illness, lasting up to seven days, an employee can self certify (1) which means they will usually fill in a form confirming that they have been unwell. It is a way for an employee to prove that they were ill or injured and unable to attend work.

Most employers will provide their own self-certification form, but HM Revenue and Customs has produced a form template (2) should an organisation not have one of its own.

Where an illness is more serious an employee is likely to question: how long can I be off work sick for?

There is no definitive answer as how different employers will manage such a situation will vary.

If an employee is off sick for more than seven days an employer will normally require evidence of the illness in the form of a fit note (or Statement of Fitness for Work (3), formerly known as a sick note.

A fit note will normally be provided by a GP or hospital doctor if hospital treatement was required. The doctor will assess the employee’s fitness for work.

Information provided on a fit note can include that the employee is not fit to work, may be fit to work with any advice provided or may be fit to work and perform alternative duties with support from the employer.

Managing long-term sickness absence can be challenging for an employer.

An employee can be dismissed on capability grounds if they are persistently off sick, or on long-term sick and all reasonable alternatives have been explored.

The amount of time an employer will consider reasonable to allow an employee to recover from illness is dependent on factors such as:

  • How long is recovery likely to take?
  • How certain it is that the employee will recover (with some illnesses, such as like broken bones, it is clear how long it will take but with something like depression it can be uncertain).
  • How easy it is to get cover for the job?
  • Can the job be kept open?

An employer is not expected to wait forever for an employee to return to work and it can still dismiss an employee on long-term sick leave. However, it has to be fair and reasonable in how it handles such a situation.

An organisation’s sickness management policy (4) will describe how any long-term period of sickness will be managed. It should also detail any trigger points that may lead to formal action being taken against an employee.

An employer is justified in asking an employee for permission to contact their GP or to consent to an occupational health assessment in order for it to gain a better understanding of the illness and any implications for the business.

Such a report or assessment can provide information on when a return to work may be possible; the likelihood of recovery and ability to perform expected duties or if a phased return or flexible hours may help.

If a long term illness is considered a disability, or the result of a disability as defined by the Equality Act 2010 (5), expert medical advice can help to identify any reasonable adjustments that can be made to facilitate a return to work.

If an employer has followed a fair procedure and guidance and no return to work date is foreseeable or suitable alternative employment cannot be found or reasonable adjustments or modifications to the workplace are not practical or possible, termination on grounds of ill health may result.

References

1.How long can you self-certify [Internet] metro.co.uk [cited 18.2.19] https://metro.co.uk/2018/01/08/long-can-self-certify-sick-needing-doctors-note-7213430/

2.Statement of sickness [Internet] www.gov.uk [cited 18.2.19] https://www.gov.uk/government/publications/statutory-sick-pay-employees-statement-of-sickness-sc2

3.Fit Note [Internet] www.nhs.uk [cited 18.2.19] https://www.nhs.uk/common-health-questions/caring-carers-and-long-term-conditions/when-do-i-need-a-fit-note/

4.Know your sickness policy [Internet] www.fitforwork.org.uk  [cited 18.2.19]  https://fitforwork.org/blog/know-your-sickness-policy/

5.Disability as defined by the Equality Act 2010  [Internet] www.gov.uk [cited 18.2.19] https://www.gov.uk/definition-of-disability-under-equality-act-2010

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A reputation built on success

For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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