Employers should have in place a suitable and up-to-date sickness policy, designed to promote the health and wellbeing of their workforce through the effective management of absence due to ill health.
The following guide provides advice for employers on the importance of reviewing their company’s sickness policy, not least to ensure that this includes the range of issues and challenges arising out of the COVID-19 pandemic.
What should a sickness policy include?
The purpose of a sickness policy is to provide a clear framework for managing, reporting and recording sickness absence in a fair and consistent way. A sickness absence policy should clarify exactly what’s expected from both the employer and employee if the employee takes time off work, either in the short or long-term, because of illness or injury.
As an absolute minimum, a sickness policy should include the following sections:
- Statement of policy: an explanation of the policy’s purpose and scope
- Reporting procedures: how to report absences, who the employee should contact and when
- Sick notes: when the employee needs proof of ill health, and how and when to self-certify
- Sick pay: how much the employee will be paid and for how long
- Keeping in touch: how and when the employer and employee should keep in touch
- Support services: what support will be provided by the employer, including any occupational health scheme or employee assistance programme
- Back-to-work interviews: when and with whom return to work discussions will be held.
Given the unique nature of COVID-19 — including the current guidance for individuals to quarantine if they have any coronavirus symptoms, have tested positive or come into close contact with someone who has tested positive — any sickness policy should include the procedure for employees if required to self-isolate, and any other COVID-19 specific rules.
What protections do employees have which need to be accounted for?
If an employee is suffering from an incapacitating illness or injury, they are entitled to take time off work. This could be because of either a physical or mental health condition. Regardless of the nature of the employee’s condition, provided this is serious enough to warrant a number of days off work, they may also be entitled to sick pay for any period of absence.
Equally, however, the law also entitles the employer to ask the employee for a written explanation or medical proof of their ill health, either by way of self-certification or a sick note, depending on the length of time that the employee is absent from work.
If someone is off work sick they might have a right to sick pay. Many employers have an occupational sick pay scheme in place under which the employee is entitled to contractual pay when absent from work due to ill health. If so, the sickness policy should set out the circumstances in which this contractual right arises, including how much sick pay is paid, for how long and the applicable rules under the employer’s scheme.
An employer cannot pay less than statutory sick pay (SSP), but it can pay more. If there’s nothing in writing, SSP is the minimum amount employers must pay. This means that in the absence of an occupational sick pay scheme, the sickness policy should set out the employee’s right to SSP, and the circumstances in which an employee will be eligible for this. SSP is paid at a flat rate, for a maximum of 28 weeks in any one period of incapacity for work.
By law, employers must usually pay SSP to any staff that meet the following criteria:
- they’ve been off sick or self-isolating for at least 4 days in a row, including non-working days such as weekends or bank holidays
- they earn on average at least £120 a week before tax
- they’ve notified their employer by any deadline date the employer has set or within 7 days.
Staff must be paid at least SSP if they cannot work because they’re self-isolating for any of the following reasons:
- they’ve tested positive or have coronavirus symptoms
- someone in their household has tested positive or has symptoms
- they’ve been advised by their doctor to stay at home before going into hospital for surgery
- they’ve been told to self-isolate by an NHS test and trace service as a result of coming into close contact with someone who has tested positive.
To be eligible for SSP when self-isolating, the individual must be absent from work for at least 4 consecutive days, including non-working days. However, unlike the normal rules for SSP where the first 3 days are unpaid, they’ll be entitled to be paid for every day they are off work.
Employees are required by law to provide their employer with a sick note — also referred to as a fitness for work note — from their GP or hospital doctor, but only if they have been off sick for more than 7 days in a row. This includes non-working days. If an employee is required to self-isolate because of coronavirus, they can instead obtain an ‘isolation note’ online from NHS 111. They don’t have to go to their GP or to a hospital to get one.
If an employee is absent from work for 7 days or less, proof of their sickness will not be required from a medical professional, although they can be asked by their employer to confirm they’ve been off sick when they return to work. This is known as self-certification. The sickness policy should set out the procedure for self-certification, and the circumstances in which an employee will need to provide proof from a medical practitioner.
What duties do employers have that need to be met?
Under the Health and Safety at Work etc Act 1974 all employers have a duty, so far as is reasonably practicable, to ensure the health, safety and welfare of their employees at work. This includes the employee’s wellbeing, where the provision of a suitable and up-to-date sickness policy will go some way toward supporting staff if they need to take time off work due to ill health. The duty to ensure an employee’s wellbeing arises even if the employee’s illness or injury is not as a result of any accident or negligence at work.
Equally, however, an employee who has sustained an injury at work or is suffering from work-related stress is not entitled to preferable treatment under any sickness absence policy, where the same sick pay rules apply, as well as the same rules in relation to keeping in touch, the provision of support and back-to-work interviews. These are each dealt with in turn.
Keeping in touch
There is no mandatory requirement for an employer to keep in touch with an employee during any period of sickness absence, although this can play an important part in supporting their wellbeing and effectively managing their sick leave, especially in cases of long-term absence. Equally, an employee is not legally obliged to keep in touch with their employer, other than the duty to provide a sick note after being off sick for more than 7 consecutive days.
However, given the importance of maintaining contact during sickness absence, both for the effective running of the employer’s business and the wellbeing of the employee, the sickness policy should set out recommended guidelines for keeping in touch. This should include how, when and with whom contact is to take place. However, the amount of contact the employer should have with an employee absent on sick leave should be no more than is necessary to support the employee or to facilitate their return to work.
Many employers will have in place some form of occupational health scheme or employee assistance programme, either in-house or via an external provider, to assist with any necessary medical assessments or other services to support an employee’s return to work. The sickness policy should outline the nature of any support services available and how to access these, including when a referral may be made for an occupational health assessment.
However, where the employee’s sick note states that they ‘may be fit for work’, their GP will also usually specify what changes need to be made at work to support the employee’s return. These can include amended duties, altered hours, a phased return or workplace adaptations.
The employee must be treated by the employer as unfit for work if there’s no agreement on any recommended changes made by the employee’s GP or occupational health specialist. It’s therefore important for the employer and employee to agree a way forward where an employee is potentially fit for work, and for the sickness policy to explain how this can be achieved. The policy should also set out the employer’s duty to make reasonable adjustments at work if an employee, as a result of a long-term illness or injury, is classed as disabled.
Where an employee has been absent from work due to ill health, either in the short or long-term, employers are encouraged to hold a return to work discussion in line with their duty of care towards the employee to ensure their health and wellbeing. This is especially important where an employee has been off work sick for a number of days consecutively or the total cumulative absence is considered to be having an impact on the business.
During a back-to-work interview, various issues may be identified — such as those of a newly-acquired disability, an ongoing health condition or a change in personal circumstances — that require action on the part of the employer. In some instances, the employee might need continued support to avoid the need for any further time off.
The sickness policy should set out the importance of the back-to-work interview, with an emphasis on the responsibility on the employee to make the employer aware of any issues which may affect their attendance so that appropriate action may be taken to support them.
What are the risks if a sickness policy is out-of-date or ineffective?
If a sickness policy is out-of-date or ineffective — including but not limited to the issues arising out of the COVID-19 pandemic — this can result in a number of problems, including:
- recurring absences for any employee who has not been adequately supported either during a period of sick leave or on their return to work
- a demotivated and demoralised workforce, especially at a time when employee’s need to feel fully supported at work given the additional anxieties arising out of the pandemic
- a higher staff turnover rate, with the loss of valuable members of staff to long-term sick leave or due to staff feeling unsupported during periods of vulnerability
- exposure to legal proceedings for breach of the employer’s duty to ensure the health, safety and welfare of its’ employees, including their emotional wellbeing.
Given the potential for serious workplace issues arising as a result of not having a suitable and up-to-date sickness policy in place, it’s often best for employers to seek expert legal advice when drafting or reviewing their company’s policy. In this way, a comprehensive sickness policy can be drawn up, specifically tailored to the needs of the business, and incorporating all manner of additional provisions including absence review systems, time off for medical appointments, and the relationship between sickness absence and annual leave.
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 cultures. For expert advice, contact us.
Sickness absence policy FAQs
What is a sickness absence policy?
A sickness absence policy is a workplace policy setting out the rules and procedures for managing, recording and reporting an employee’s absence from work due to ill health — explaining exactly what's expected from both the employer and employee.
What should a sick policy include?
A sick policy should include, as an absolute minimum, the reporting procedures, the rules relating to sick notes and pay, the expectations on keeping in touch, what support services are available and how back-to-work interviews will be conducted.
What is the law on sickness at work?
There are various legal aspects arising out of sickness at work, such as the rules on statutory sick pay and sick notes. The employer is also under a legal duty to ensure the health and wellbeing of its employees.
Last updated: 30 July 2021