Contacting Employees on Sick Leave

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As an employer, you are obliged to take steps to ensure the health and wellbeing of your employees. During a period of sickness absence, employers have to ensure they are striking the right balance between reasonable contact designed to check on the employee’s welfare, or to address any absence-related matters, and excessive or unnecessary contact that can have an adverse impact on an individual’s recovery.

Below we look at the rules on contacting employees on sick leave, and on employees keeping in touch, and how sickness absence policies can be used to set some acceptable boundaries, and to let employees know in advance what’s expected of them when signed off sick.

 

Can you contact employees on sick leave?

There is no rule prohibiting an employer from contacting an employee during a period of sick leave. On the contrary, employers are under a statutory duty to ensure the health, safety and welfare of its employees, so far as is reasonably practicable, including where an employee is absent from work due to illness or injury. This means that employers should usually take steps to check on the wellbeing of employees, and to ascertain what steps may need to be taken to support their recovery and return to work, especially in cases of long-term sickness absence.

There may be a number of different reasons why contacting employees on sick leave may be necessary, helpful or otherwise acceptable, including:

  • To determine how long they’re likely to be off work for the purposes of workflow and cover
  • To update them on any important changes at work to keep them in the loop
  • To discuss any matters relating to their sickness absence, such as sick pay or fit notes
  • To ensure they don’t feel isolated, ignored or anxious about getting behind
  • To discuss any adjustments that can be made to facilitate their return to work.

 

Whether contacting employees on sick leave is purely for practical reasons, or to support their mental wellbeing, keeping in touch will help to discharge the employer’s statutory duty and maintain a positive working relationship. It will also help to ensure any employment rights, such as the right to statutory or contractual sick pay, are met during the employee’s absence.

Failing to support an employee when they feel at their most vulnerable, or failing to honour their basic employment rights, can seriously damage the employer-employee relationship. It can also put the employer in breach of duty or breach of contract. That said, this doesn’t give employers the green light to repeatedly contact employees on sick leave, where excessive contact may be counter-productive, not least for someone suffering from work-related stress.

 

Employees keeping in touch while on sick leave

There is no automatic obligation on an employee to keep in touch during sick leave, although employees must, when first absent from work due to illness or injury, notify the employer of the reasons for their absence and when they’re likely to be well enough to return. Many employers will have a written procedure in place for reporting sickness absence.

In cases of short-term absence, it may be reasonable to ask the employee to call in sick every day to keep their line manager appraised of their return date. In cases of long-term sick leave, the employer may instead need to formulate a plan to support the employee during their absence, including the level of contact and communication to be expected from both sides.

If an employee is unwell for more than 7 consecutive days, including weekends and bank holidays, and has taken sick leave, they will need to provide their employer with a fit note. This will set out the date they were clinically assessed, the nature of their condition, when they’re likely to recover or whether they will need to be reassessed to determine their fitness for work. It may also set out ways in which an employee can be supported in their return to work, for example, amended duties, altered hours, workplace adaptations or a phased return.

If an employee is off sick for 7 days or less, they don’t need to provide a fit note, but they can be asked to self-certify on their return. This means they must provide a written explanation of the reasons for their absence, either by email or by completing a self-certification form.

 

Can employers ask the reasons why an employee is off sick?

It’s perfectly reasonable for an employer to require an employee to explain the reasons why they’re unable to work, and for the employee to provide medical proof in support or, where applicable, a written explanation of the reasons for their absence on their return to work.

Many employers will have in place a written procedure, advising the employee on who to contact when they’re unfit for work and what evidence they will need to provide. If an employee fails to follow these reporting procedures, or fails to provide medical evidence or a written explanation of their inability to work, the employer may be entitled to treat the employee’s absence as unauthorised, for which disciplinary action may be taken. Any failure to provide a valid fit note also means the employer may be entitled to withhold any sick pay.

 

Can employees be required to attend a meeting while off sick?

Although asking an employee to phone in sick or keep in touch is acceptable, this is entirely different to requiring them to attend a meeting while off sick. However, much will depend on the reason for the meeting and the nature of the employee’s condition. If the employee is in hospital or bed-bound, it would be unreasonable to ask them to attend a meeting until they’re much better. There must also be a legitimate reason for holding the meeting in the first place.

Any meeting that involves work-related matters would not normally be appropriate, as an employee must not usually be asked to undertake work-related tasks during sick leave. If the meeting involves a disciplinary matter, whether this be an ongoing issue or something that has come to light during the employee’s absence, where at all possible this should be deferred until their return to work. If the matter is urgent then, at the very least, the employer should wait until the employee is well enough to attend or make written submissions.

Cases of suspected malingering present some tricky issues here, as an employee who is fabricating or exaggerating their symptoms may, in reality, be well enough to attend a meeting, yet the medical evidence suggests otherwise. Equally, if an employee is wrongly accused of malingering, and then forced to attend a meeting when they’re genuinely unfit to do so, this could have serious repercussions, including an employee feeling forced to resign and claim constructive dismissal. In these types of cases, it may be sensible to first ask an employee to undergo an independent medical assessment by an occupational health specialist. The expert conclusions drawn can then be used as a sensible basis upon which to decide if disciplinary proceedings can be justified and if so, when to invite an employee to a disciplinary meeting.

In cases of genuine long-term sick leave, where the medical evidence suggests that an employee may be fit for work — subject to suitable adjustments being made to their working conditions — detailed discussions will need to be had with the employee to determine the best way forward. In these circumstances, it may be acceptable to require an employee to attend a meeting to discuss what can be done to facilitate their return, provided the employee agrees to this and is well enough at that stage to do so.

 

Can an employer visit an employee at home while off sick?

Strictly speaking, there’s nothing prohibiting an employer from visiting an employee at home while off sick, although it is likely to be considered intrusive to turn up unannounced, even if done with the best intentions to check on the employee’s welfare and progress.

Contacting employees on sick leave can be a very delicate process, and must be handled sensitively, especially where an employee is suffering from work-related stress or any other type of mental health issues. In some cases, receiving a visit at home, or any other form of communication from someone at work, could negatively impact the employee’s recovery.

Home visits should only take place where there’s a legitimate reason for a face-to-face visit at the employee’s home address, such as to hand deliver a letter to ensure that it’s received or to collect work equipment required to cover the employee’s workload in their absence. A home visit should also be expressly agreed with the employee in advance.

There’s no one rule to fit every situation, as much will depend on the nature and extent of the employee’s condition and the reason for the visit. However, employees should not be pressured into accepting a welfare visit or any other type of meeting at their home address.

Welfare checks can normally be conducted over the telephone, whilst any other meetings should usually be deferred until the employee is well enough to discuss the matters in hand. If a meeting is necessary, the employee should be given the choice of where to meet, and other methods of communication should be explored, such as telephone or video conferencing.

 

What constitutes employer-harassment while on sick leave?

Any contact with an employee on sick leave should be no more than is reasonable, where a balance must be struck between adequately supporting the employee and dealing with any practical matters, and providing them with sufficient space to rest and recuperate. However, what is classed as reasonable will again depend on the circumstances involved, including the nature of the employee’s condition for which they’re signed off sick.

For instance, it may be reasonable to contact an employee with a broken limb more often than an employee suffering from work-related stress. This is because repeated contact by the employer with someone whose absence is attributable to a mental health condition, not least where work is the primary cause, is likely to feel intrusive. In these cases, it’s important to consider whether less or more frequent contact is best. Too little contact can make an employee feel unsupported, whilst too much contact can make them feel harassed, potentially aggravating their ill health or even making them feel pressured into an early return to work.

Where possible, it’s a good idea for the employer to try to agree with the absent employee how often contact should be made, how that contact is to take place and with whom. By agreeing the level of contact that’s acceptable to both parties, this will help to set employee-expectations and reduce the level of distress that this could otherwise cause.

 

Role of the sickness absence policy

A sickness absence policy is an effective way of creating a clear framework for reporting and managing sick leave, so that all employees are treated fairly and consistently. It’s also a useful way of defining acceptable boundaries when it comes to contacting employees on sick leave, and for letting employees know what’s expected of them when signed off sick.

The purpose of the policy should be clearly defined, namely to help the employer understand the nature and cause of the employee’s absence and to identify what action, if any, needs to be taken to assist the employee in returning to work. The policy should also include detailed procedures on phoning in sick, timelines for self-certified absences, the use of fit notes, the employee’s right to sick pay and the rules on keeping in contact.

However, whilst having a policy in place in respect of contacting sick employees, such that any initial contact can be carried out with little risk of complaint, the nature and frequency of any ongoing communication should be determined by agreement. In this way, the employee will be clear on what to expect from the employer, and what is expected of them, moving forward.

 

Need assistance? 

DavidsonMorris’ HR and employment law specialists work with employers to support with compliant and effective workforce management. We can advise on issues such as sickness absence and how policies and documentation should be used to help manage risks and foster positive working relations and cultures. For expert advice, contact us.

 

Contacting employees on sick leave FAQs

Why should an employer make contact with an employee when they are off sick?

Employers can contact sick employees to check on their welfare, to see when they’re likely to return to work or to address any absence-related matters, like sick pay and fit notes, provided this level of contact is reasonable.

Can I write up an employee for calling in sick?

You can write up an employee for calling in sick if they fail to follow the correct procedures for reporting sickness absence or their reasons aren’t credible. However, you must have clear evidence of malingering before taking any disciplinary action.

Can I ask an employee why they are taking sick leave?

An employer can ask an employee to explain why they’re off sick. The employee may also need to provide a fit note or follow a written self-certification procedure on their return to work.

Last updated: 30 September 2021

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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