Sick days, lack of digital and hard infrastructure, plus a skills shortage is holding back the South West’s economy to the tune of £50 billion per annum, according to new research. The report, by business and financial advisors, Grant Thornton working with the CEBR and YouGov, highlighted that the number of sick days taken in the South West could be a key factor hindering economic growth in the region. The report found that the South West’s output could be increased substantially if the South West’s workforce reduced sickness absence.
So, make sure you’re managing absence effectively, sensitively but in a cost effective manner. Tricky issues can arise when employees are on sickness absence that can be frustrating for employers. Not handling them in them in the right way could lead to increased costs and potential claims for employers.
If not already included, it would be prudent to have a contractual requirement that employees provide evidence of incapacity and submit to a medical examination if required. Compliance with that requirement should be linked to the payment of any enhanced sick pay that is over and above Statutory Sick Pay (SSP).
In terms of SSP, guidance from HMRC is that unless there is strong evidence to the contrary, a standard doctor’s certificate should be taken as conclusive proof of incapacity. In such cases if an employer wishes to challenge the requirement to pay SSP they should either:
- arrange for their own medical evidence;
- ask HMRC to arrange for the employee to be examined by their Medical Services Team; or
- stop payments of SSP and invite the employee to apply to the HMRC’s Statutory Payments Disputes Team to challenge the withdrawal.
Withdrawal of either type of sick pay needs to be considered carefully on a case by case basis to avoid undermining the relationship and potential discrimination by an employer, including taking legal advice as necessary.
What can an employee do on sick leave?
Whilst an employee will remain obliged to follow reasonable and lawful instructions during sickness absence, this does not extend to enable an employer to dictate exactly what an employee can and cannot do during this time.
This can be frustrating for employers who discover their employee on sickness absence is spotted out and about, even on holiday or working elsewhere while saying they are unwell. It is vital that an employer proceeds with caution, avoids jumping to conclusions, or making knee jerk decisions that could potentially lead to costly employment claims.
Allegations of dishonesty must be investigated thoroughly and a proper procedure followed. Employers often find out about an absent employee’s activities while they are on sickness absence via social media. Whilst it may be tempting to rely solely on evidence from social media this can be risky and monitoring employees can bring data protection and human rights issues into play. Any investigation involving social media should take into account an employer’s relevant policies such as Data Protection, Social Media and IT.
If an employer has concerns that illness is not genuine, it might be appropriate to consider getting a medical report. Once in receipt of medical evidence an employer will often be best able to determine whether further action is required. If the evidence indicates that an employee has been dishonest, an employer may then be able to commence disciplinary proceedings in the normal way.
Being signed off sick does not preclude an individual from leaving their house or having fun. The issue is whether the activity is inconsistent with or calls into question the genuineness of the sickness absence.
If, for example, an employee is signed off sick for having a broken arm the fact they are seen at the cinema does not cast any doubt over the genuineness of the sickness, however, if they were seen bowling or playing in a band this might raise suspicion.
Remember too the benefits that can be derived from leisure activities. If an employee is signed off sick with depression and anxiety then medical evidence may reflect it is helpful to their recovery to go on holiday or follow leisure pursuits.
Before jumping to conclusions, an employer should ask:
- whether the nature of the sickness absence impacts on the individual’s ability to carry out the activity they have been spotted carrying out;
- whether the activity might make the employee’s alleged condition worse; and
- whether the activity helps the individual with their recovery.
Working for others
If an employee is found to be working for another employer while on sick leave this may result in a finding of misconduct or gross misconduct. It is feasible for an employee to claim SSP while medically unfit for one job and carry out a job elsewhere in a different job for another employer for which they are still fit.
Factors to take into account to determine if a finding of misconduct is warranted include:
- do the circumstances indicate the employee is not really unfit to carry out the first job and is therefore fraudulently claiming sick pay;
- does the other role have an impact on the employee’s recovery;
- does the employee’s contract of employment prevent them from working elsewhere or have they been given permission to do this;
- is the employee carrying out the second job during hours in which they would otherwise have worked for the first employer
To discuss this or any other HR issue call 01392 210700 or email@example.com.