Managing sickness absence

Managing sickness absence is one of the most legally difficult tasks that employers face. Several different legal problems can arise and an informed approach is essential to avoid the various pitfalls and any potential claims of disability discrimination.

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What should an employer do if an employee is off sick?

Employers must pay statutory sick pay at a rate set by the government for up to 28 weeks qualifying absence.

Many employers offer an enhanced sick pay entitlement but this is not mandatory.

For periods of sickness of seven days or less, the employer should obtain a self-certification form from the employee explaining their absence. From the eighth day onwards, the employee should provide a fit note (formerly a 'sick note') from their GP. If the employee’s sickness absence has been for four consecutive weeks or more, the employee may be referred to an occupational health professional under the Fit For work scheme, where a Return to Work Plan will be agreed providing specific recommendations for that employee, replacing the need for a fit note. Holiday continues to accrue during sickness absence, even when it is an extended absence.

The Bradford Factor can be useful in managing sickness absence but don’t use it in isolation, as each case should be considered on its merits.

Dismissing employees for sickness absence

Employers may want to dismiss employees for extended or frequent sickness absence and this raises issues of unfair dismissal and, sometimes, disability discrimination.

Employees who do not have unfair dismissal rights may be dismissed for sickness absence so long as the dismissal is not discriminatory. If an employee has unfair dismissal rights then sickness absence can be a fair reason entitling the employer to dismiss but more care must be taken and a fair process followed.

Steps should include: 

  • Obtaining reliable medical information about the reason for absence and prognosis. This may be from the GP or an occupational health professional. Strict rules apply about getting consent for health information to be obtained.
  • Consideration of the requirements of the business, the likely future pattern of absence and the employers ability to accommodate further absences.
  • The assessment of opportunities for redeployment of the employee into a more suitable role.
  • For intermittent absences, warning the employee that the employer cannot sustain the levels of sickness absence and of the risk of dismissal.
  • Holding a pre-dismissal meeting similar to a disciplinary hearing where the employee has the right to be accompanied and is able to make representations as to why they should not be dismissed. A right to appeal against dismissal should also be offered.

Makes sure comparable cases are treated consistently. 

What if the employee is disabled?

When an employer has an employee on long-term or problematic intermittent sickness absence it is crucial to consider whether the employee might be disabled.

For these purposes, 'disability' has a much broader definition than in ordinary language and covers any mental or physical impairment that has an adverse affect on the person’s ability to carry out normal day-to-day activities likely to last 12 months or more.

If the employee is disabled then the employer has additional duties including the duty to make reasonable adjustments to ensure that the employee is not placed at a substantial disadvantage as a result of the disability. Extreme care should be taken before dismissing a disabled employee.

Don’t include absence due to a disability when performing redundancy selection.

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