The employers’ responses to absenteeism can as varied as the reasons for absence. It is true that those who are on long term sick leave become a problem that many employers fail to grapple with presumably on the basis that if an employee has used up all of their sick pay then they are simply an administrative burden. Leaving employees on unpaid long term sick leave may be an easier option than dealing with the difficulties of rehabilitating them back into work or alternatively terminating the employment and possibly dealing with disability discrimination issues.
There is also no doubt that short term persistent absenteeism is a particularly difficult problem especially where there is no underlying long term impairment. Employers often have to face difficult questions about whether they accept rather generalised sick notes from GPs which may use words such as “anxiety”, “stress”, and “affective disorder”. Indeed the issue is even more complex when one considers that statutory sick pay is not payable for the first 3 days of absence and many employers only require an employee to provide a GP note after 5 or 7 days absence. Self certification really is open to abuse.
The legislation says that Statutory Sick Pay (SSP) is paid only if an employee has a “day of incapacity for work in relation to his contract of service with an employer” but what is meant by incapacity?
Incapacity means the employee is or is deemed to be incapable, because of some disease or bodily or mental disablement, of doing work which he can reasonably be expected to do under his or her employment contract.
There is no obligation to pay SSP unless proper notification of the incapacity has been given.
Regulations set out, for example, that an individual who is sick but detained in custody is not entitled to SSP. But what other circumstances are there where an employer might legitimately refuse or challenge an employee’s right to receive sick pay and, moreover what exactly does “incapacity for work in relation to his contract of service with an employer” mean?
As already mentioned, there is no obligation to pay SSP (and any company sick pay policy should reflect this) unless the requirements for notification of the illness have been met. It is open for an employer of course to set out in its sick pay policy what requirements it has for notification. Records should be kept of notification and if, for example the employer requires a telephone call by 10 am on the first morning of absence and that the telephone call should be made to a specified individual, records should be kept of whether such notification has been made. If it has not then the employee may forfeit sick pay.
The legal definition of incapacity is quite specific. It means that the individual is incapable of doing “work in relation to his contract of service”. On any sensible reading that must mean that the employee is wholly incapable of doing work that he is required to do under his employment contract. It follows that not every illness necessarily prevents an employee from doing all of their work under their contract. An employee with a sore throat is not incapacitated if their work does not require them to communicate verbally. It is an illness but it does not incapacitate. That is why the legislation uses the word “incapacity” not “illness” or some other similar word.
It is also noteworthy that these days it is common practice for employees who are being taken through disciplinary or performance review proceedings to go off sick, often with stress. Employers then have difficulty in getting these employees to attend meetings, or even communicate with the employer at all. Employees presume that having a sick note means that all of their obligations towards their employer are in some sense suspended. But that is far from true.
A sick note means that the employee should refrain from working. It does not mean that the employee cannot, for example, attend meetings with the employer. This is potentially powerful information. If an employer considers that an employee is away from work purportedly ill, but there is a suspicion that the employee is not ill (but is effectively taking extra holiday), it is perfectly reasonable for the employer to require the employee to attend a meeting during this time to, for example, discuss when they might return to work. The sick note does not prevent this, it does not ‘protect’ the employee from attending to this aspect of the employment relationship.
It has also proved useful for many employers in the past to have return to work interviews during which it is pointed out to the employee how much time they have taken off and what the impact of their absence on the workplace.
It is through these relatively small measures that the employer can begin to undertake absence management and hopefully reduce both short and long term absenteeism.
