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Sickness Absence Policies: What to do if an employee is always off sick

View profile for Chris Dobbs
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Sickness Absence Policies: What to do if an employee is always off sick

Everyone gets sick from time to time whether it’s seasonal flu, stomach upsets or even the results of an enjoyable weekend affecting you on Monday morning.

But sickness absence can be hugely problematic for an employer. Staff on long-term absences become difficult to manage with uncertainty about when and how they might return and those with persistent, short-term absences can create issues when it comes to covering work.

In his latest article, Employment Associate Chris Dobbs clears up some frequently asked questions around sickness absences and provides advice for employers on absence policies.

How many sick days per year is an employee allowed UK?

There is no magic number at which level of sickness becomes unacceptable. In fact, being too rigid on sickness absences in this way can leave employers open to legal claims especially where the absence is related to a disability.

How many paid sick days a member of staff gets is a matter for the employer and their own policies. The majority of employees are entitled to up to 28 weeks of statutory sick pay.

How many sick days can an employee have in a row?

Statutory Sick Pay is payable from the fourth day of absence, but staff can self-certify for the first week.

Evidence must then be given by the member of staff in the form of a fit note if they are off work for more than 7 days in a row including non-working days.

How many sick days is an employee allowed before a disciplinary?

Again, there are no hard and fast rules for this, but there are several considerations before going down this route:

  1. Sickness absence should rarely be treated as a discipline issue unless you have reason to believe the member of staff is abusing policy or not genuinely sick. Which sickness absence procedures often mirror a discipline process, they are more commonly a performance or capability issue.
  2. The ‘trigger point’ for starting a formal process will depend on the nature and frequency of absences. This is partly a matter for policy and partly a matter for common sense. The important thing is establishing the reasons for absence before taking any other formal action.
  3. Rigid ‘trigger points’ absence procedures carry the particular risk of discrimination claims if absences are related to a disability.

Can I suspend someone who is off sick?

You can, but there are limited reasons why you would want to. An employee or worker who is medically unfit to work is not at work and the purpose of a suspension is usually to remove someone from the workplace.

The moment the employer takes the action of suspending, you become the one denying the individual their right to work and they should be on full pay. An employee who is medically signed off may well only be earning statutory rates.

Can I dismiss an employee who is off sick?

Yes. An employee who is off sick can still be subject to disciplinary processes, performance issues or be part of a redundancy selection pool all of which may result in a dismissal.

You do need to make sure that the reason and process by which you reach the decision to dismiss are both fair and there may be additional burdens on you to keep in touch with an employee who is absent as part of these processes.

In particular, be mindful of reaching dismissal too quickly if the absence is disability-related because the Equality Act expects you to consider reasonable workplace adjustments to accommodate a return before dismissing.

Related: Is a failure to make a reasonable adjustment when dismissing always unfair?

What is considered long-term sick leave?

Realistically, anything over a month can be treated as long-term. Four weeks is a long time to be out of work and it is recognised that this will start to have an impact on the employer too.

How do you dismiss an employee on long term sick?

As with any dismissal this is a big decision and not one which should be taken lightly. There is a risk of an unfair dismissal claim if a proper procedure is now followed, and you should also be mindful that a long-term sickness could be caused by a disability.

Ultimately though, you can terminate for long-term absence, usually on the grounds of capability.

The process for dismissing an employee on long term sick leave

A formal process which involves attempting and discussing return to work plans and setting out clear expectations should be used to manage the process. You will need to be empathetic to their needs and understand the impact of their condition on their ability to work.

Medical evidence can be useful in assessing the worker’s likelihood of returning to work, but the onus is on the employer to make a decision on the information available to them.

What should an effective sickness absence policy include?

Any effective policy sets out clear expectations and processes while allowing the business to adapt its procedure to suit the individual circumstances of the people affected. A good sickness absence policy will:

  • Cover expectations on staff to report their absence
  • Set out rates of sick pay whether statutory or contractual
  • Outline what happens on a return to work such as completing sickness records
  • Help managers and staff understand the process for managing long-term sickness absence

Policies are rarely ‘one size fits all’ and can often be tailored to suit the individual needs of the business. It is also important to make sure that everyone who may be involved in a process under them understands how they work.

Related: How to write strong employment contracts

Related: The legal implications of recruitment that employers need to know

How much is statutory sick pay?

The rate of Statutory Sick Pay (SSP) is reviewed annually in line with the other statutory pay rates.

Currently, SSP is £109.40 per week payable for up to 28 weeks to eligible employees after the first three days of absence.

As with most rates like this though, they change relatively frequently. To keep up to date with any changes to SSP, and any similar rates such as the living wage, you can sign up to our email newsletter here.

Do employers have to pay sick pay?

Statutory sick pay is mandatory for all eligible staff members.

To qualify they must be an employee, earn the National insurance threshold per week and have notified you of their absence beyond the third day with proof by way of a fit note.

How long do you have to pay sick pay?

Statutory sick pay must be paid for up to 28 weeks. Company or contractual sick pay, or additional discretionary payments, are a matter for the contract or business to decide.

When paying discretionary sick pay, employer should be mindful of unfair or discriminatory treatment.

Employment & HR Solicitors

Our bright Employment Team has a vast experience in assisting employers with a ride range of issues, including dealing with sick leave and sick pay issues.

We’d be happy to advise you on the best way forward for your business and answer any questions you might have, especially regarding disciplinaries.

You can call us on 01202 499255, or fill out the form at the top of this page, for a free initial appointment.

Tailored courses for Employment & HR Professionals

We also offer a range of tailored Employment Training Courses for new and experienced employers and HR professionals, one of which focuses on sickness absences.

You can find out more here.

To keep up to date with employment news, tribunal and updates; you can register for our free newsletter here.

The content of this article, blog or video is not intended as specific legal advice. For tailored assistance, please contact a member of our team.