Sickness Absence

Sickness absence can take many forms ranging from an employee simply needing a few days off work to recover from a virus, to more complex matters such as persistent absenteeism or long term sickness absence.

It is advisable to check your employer’s sickness absence polices, if they have one. This policy should provide details on how to report absences, what level of absence they think is acceptable and how they will manage staff who take sick leave.

Reporting Absence

Ensure you are aware of the employer’s policy on reporting absences.

• For short term absences, this usually requires calling the employer, normally within an hour of the employee's normal start time, and informing the employer that they will not be coming in. This is normally referred to as self- certification.
• If the nature of the illness means the employee is unable to call in themselves, a family member may be able to report the absence instead.
• For longer absences (over 7 days) a doctor’s note is required. This “fit note” will say how long the employee is expected to be unfit for work and if they could go back to work on amended duties. If the employer has been provided with a fit note then there should no longer be a requirement to call in and report the absence every day. This is however subject an employer’s own polices.

It is important that the correct process for reporting absence is followed. If an employee fails to follow this policy it could lead to disciplinary action.

Short term frequent absences

These can occur when an employee has regular periods of absences from work or they follow a particular pattern (i.e. every Monday the employee is off sick). There may be genuine health issues that the employer needs to be made aware of and this may include underlying health conditions which constitute a disability within the meaning of the Equality Act 2010. Please see the UnionLine page on discrimination for further information.

It is important to ensure that the employer is made aware of any mitigating circumstances surrounding an absence. This may include work contributing to the illness. If there is supporting medical evidence such as letters from GP’s or specialists the information should be passed onto the employer.

If absences persist the employer may treat this as a disciplinary matter and the employee could be at risk dismissal if attendance does not improve. If attendance targets are set and reviews arranged these should comply with the employers internal policies and if the employee is disabled, should be consistent with the employer’s duty to make reasonable adjustments. Copies of such policies should be obtained to ensure this is being fairly and correctly followed.

It is recommended that further advice is sought from your region if you are having difficulty complying with your employer’s attendance requirements. If you need specific advice please contact your GMB representative.

Long term sickness absence

If an employee takes a period of long term sickness absence it may lead to dismissal on grounds of capability. This is may happen if the employee is unlikely to return to work in the near future and has been off work for a significant period of time.

Before an employer dismisses an employee they must take into account:

• the importance of the role;
• the employee’s length of service;
• previous attendance record; and
• the nature of the illness and the medical prognosis

An employer should seek to avoid dismissal wherever possible and they are encouraged to meet on a regular basis in order to establish if there is anything that could be done to facilitate the employee’s return to work. If an employee is likely to return to work in the near future, but te employer moves to dismissal then that dismissal may be unfair.

An employer may request access to medical records or seek an occupation health report. The purpose of this report should be to provide the employer with medical information regarding the employee’s medical condition and if there is any support that can be given to help them return to work.

In most cases, it is advisable that an employee cooperates with the disclosure of medical information. The report may lead to adjustments being made which would help the member return to work.

If an employee refuses to share medical information an employer could make a decision regardless of any medical advice/guidance and this may lead to action which would not be in the employee’s best interest. As a rule it is therefore much better for the employee to cooperate with these requests.

What is a disability?

Under the Equality Act 2010 a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. ‘Long-term’ means that the condition must last, or be likely to last, for more than 12 months, or is likely to last for the rest of the life of the person affected.

Examples of conditions that can be covered by the definition include: chronic fatigue syndrome, schizophrenia, rheumatoid arthritis, diabetes, epilepsy, dyslexia, eczema, depression and some cases of obesity where there is a physical impairment with a substantial adverse effect on daily activities.

To be covered under the Act, a condition doesn't have to be clinically well recognised. The emphasis is on the impact of the symptoms rather than the label that's been attached to them. The ultimate decision is one for an Employment Tribunal to take based on the available medical evidence.

Individuals with cancer, multiple sclerosis or HIV/AIDS are covered from the date of diagnosis regardless of the impact that the illness has on them. These conditions are automatically covered by the Equality Act.

Types of discrimination

Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics, which include disability. The types of claim are:

• direct discrimination;
• indirect discrimination;
• discrimination arising from a disability;
• failure to make reasonable adjustments;
• victimisation;
• harassment;

Please refer to our discrimination page for further information on these potential claims.

Reasonable Adjustments

If the reason for sickness absence is due to a disability then an employer should consider making reasonable adjustments to both the workplace to assist an employee in getting back into work and potentially the sickness absence policy. Please see the UnionLine page on discrimination for further information.

Only employees who meet the definition of a disability outlined above have a right to reasonable adjustments.

However, if there is an adjustment that can be made which would help an employee return to work, it may be in everyone’s interest to introduce it even if the employee could be said to not meet the strict definition of disabled within the meaning of the equality Act 2010 and if an employer fails to then this could mean any termination could amount to an unfair dismissal.

Sick Pay

The employer may offer a contractual sick pay scheme. The employee’s contract should therefore be checked first to see if they are entitled to receive this. As this is the employer’s own policy they are able to set their own rules on how an employee qualifies for sick pay. These rules should however not discriminate against the employee.

If an employer does not pay contractual sick pay an employee may be eligible to claim Statutory Sick Pay (SSP). Currently this is £92.05 a week and the employer should pay this for up to 28 weeks.

Under the statutory scheme an employee is not paid for the first 3 days of sickness. To be eligible, employees need to earn at least £116 a week and have reported the sickness in accordance with the employer’s policy.

If an employee thinks they have not been paid the correct sick pay you should contact your Region for support. If specific advice is needed you should be contact your GMB representative.

Return to work

• It is best practice for the employee to meet with their employer when they will return to work.
• These meetings should help employees settle back into work and update them on anything they may have missed while they were away.
• This is an opportunity to discuss the absence and identify any underlying issues the employer may be able to assist with.
• A return to work should usually be on a phased basis if the period of absence has been long term and the medical evidence suggests that this is appropriate.

Time Limits

Employment Tribunals have strict limits in which to bring a claim. They must be brought within three months less one day of the act of discrimination or dismissal complained of.

If you are unsure about any aspect of employment law then you can refer to our other UnionLine employement rights pages - in particular the one on the issue of Limitation in Employment cases. You may also want to seek specific advice from your GMB Region in the first instance.