Sick pay, absenteeism and ‘swinging the lead’

Sponsored feature | Andrew Buckley, partner, Woodfines Solicitors

The Daily Telegraph reported on 11 August that private GPs are signing sick notes (from £25 each) for people to take time off work and “go to the beach”.

The article reports that an undercover reporter received sick notes online from seven different doctors after telling each one she was suffering from stress/anxiety. In one case, the journalist told the doctor she would “really benefit from time off work due to the hot weather and I want to be spending time at the beach” and the doctor advised her to take two weeks off work. In another case, the consultation between patient and medic took 30 seconds before a two-week sick note was supplied.

It was reported some of the clinics offer a same-day service and have money-back guarantees if the doctor does not approve a sick note. A spokesman for one clinic advised “we expect people to be truthful and accurate when reporting their symptoms…”

The potential for abuse of the sick note system is obvious, when one can so easily be obtained.

What is the law?

- An employee can self certify that they are too ill to work for up to seven days. If they are absent from work for more than seven days, they need to supply a ‘fit note’ (also known as a sick note) from a healthcare professional.

- An employee is entitled to either statutory sick pay (if they meet the legal criteria) or contractual sick pay (if their contract provides for this).

- Statutory sick pay is payable to eligible employees from the fourth day of sickness absence.

What can prudent employers do to protect themselves against unscrupulous employees who are prepared to ‘swing the lead’ in order to take time off work when they are not genuinely ill?

In the writer’s experience, it is very difficult for an employer to look behind a sick note issued by a doctor. Consequently, it is important for employers to find other ways to deal with this kind of problem. The obvious answer is for employers to ensure their employees have contracts of employment that say:

- In the event of sickness absence, the employee is entitled to statutory sick pay; and

- The employer has a discretion but no obligation to pay in full for periods of sickness absence.

In this way, the employer can discourage short-term, intermittent absence (for example, people who take a lot of Fridays and Mondays off work) since the period of absence would not be paid under the statutory sick pay (SSP) scheme. Further, where employees take longer periods of time off work due to illness, the employer can be generous to long-standing and hard-working members of staff (and pay in full) and can choose to pay SSP only in more borderline cases (SSP currently being paid at a rate of £116.75 per week).

Prudent employers will also monitor sickness absence and take action where employees take a lot of sick leave, and will also have ‘return to work’ interviews where employees have taken time off work due to sickness.

If you have any questions, get in touch with a member of our Employment team at employmentsupport@woodfines.co.uk.

See woodfines.co.uk.