Sickness Leave, Sick Pay and SSP

Employees are allowed to take time off work for sickness or illness. But certain steps can be taken to ensure the legitimacy of their sick leave.

Explaining the illness

The employee has to explain the circumstances surrounding their sickness to you. Though different rules apply depending on how long they have been absent.

If the time off lasts up to seven days, you can ask the employee to fill in a self-certification form detailing the illness and reasons for the absence. Many employees will have their own self-certification form, or an employee might instead use an Employee's Statement of Sickness form, either way the result and purpose is the same.

An employee who has taken more than seven days off for illness will be required to provide you with an official Statement of Fitness to Work from their GP or relevant doctor. This statement (also known as a 'fit note') will contain more specific information with regard to how the sickness or illness affects the employee's ability to work, as well as steps they may take to ensure a swift return to normal duty.

Employer's discretion

While many companies will have sick pay schemes in place, with various regulations and criteria to be met in order for the employee to receive whatever level of pay is offered in the event of sick leave, ultimately it is up to the discretion of the employer.

You can refuse to give sick pay if the reasons for absence are unsatisfactory. It is advisable to give careful consideration to the Equality Act 2010 before you do this, which ensures the decision is free from any prejudice or discrimination. 

You can also give pay to an employee if they do not qualify under the company's sick pay scheme. This is called 'discretionary sick pay'. It is worth noting that receiving this discretionary pay in one instance does not guarantee its receipt in the future. Sometimes, through custom and practice, it can become part of the employee's contract.

Returning to work

Following a period of employee absence due to illness, you are required to conduct an informal assessment with a view to welcoming the employee back and assessing their fitness and ability to resume their normal duties. Any necessary support to aid their rehabilitation must also be discussed. During this informal meeting, the employee must also be informed of any changes to the workplace and its functioning. If the sickness was related to work, an alternative solution should be found so as to avoid future injury or illness.

Long-term sickness leave

An employee stricken with a long-term illness may still be entitled to leave on the conditions that they regularly report to you. By giving updates on their situation they can also arrange a Return to Work interview upon returning to good enough health. It is also important for the employee to be absolutely clear about the terms of the company's sick pay scheme, in order to know exactly what they are entitled to.

When the employee does return to work, you are encouraged to implement a rehabilitation programme, helping the employee settle back in smoothly. This might include an offer of more flexible working hours and updates on any changes to duties or the working environment. This programme will be similar to the standard return to work procedure though naturally slightly more involved, accommodating for the significant amount of time taken off work.

Employee dismissal following long-term sickness leave

Employers reserve the right to dismiss an employee on long-term sickness leave though only as a last resort, having already considered the following:

• offering more flexible hours and/or a slightly reduced workload
• the extent of the employee's expected recovery and any assistance necessary during the recovery
• the ability of the employee to restore standard practice upon recovery

If the employee has been dismissed as a result of long-term sickness leave and they feel alternatives to dismissal were not properly considered, they may have a case for unfair dismissal which can be taken to an Employment Tribunal.

Statutory sick pay

The purpose of the scheme is to compensate employers for some of the SSP paid for higher than average sickness absence. You have until 6 April 2016 to make a claim under the PTSS for any SSP due up until 5 April 2014, as the SSP Percentage Threshold Scheme is being abolished. Instead, a new Health and Work Service will offer health and work advice to employers, employees and GPs via  telephone and a website.

You will still be required to maintain sick leave records for PAYE purposes and to demonstrate you are meeting your SSP obligations.

Company sick pay

Each company sick pay scheme is different, changing from workplace to workplace, but what is common throughout is the general minimum of three months service before an employee can claim sick pay from such a scheme. The way these schemes tend to work is that an employee taking time off due to illness will receive full payment during the absence for a certain number of weeks. After this there is generally a period during which half-pay is awarded to the employee, and finally after this is a period where all leave is unpaid.

An employee can be contractually entitled to leave in order to care for a sick dependant, but unless explicitly stated within their contract, this leave does not have to be paid at all.

Work-related sickness 

You can also run schemes for those affected by illness or injuries that occur in the workplace. Details of such a scheme would need to be given to employees before their contract begins. 

Any injuries sustained, including psychological harm (eg depression or stress), for which you are responsible may make you liable for a personal injury claim. 

Problems receiving sick pay

If it turns out that your employee has been underpaid SSP, or received nothing at all as recompense for their absence, then you may be guilty of 'Unlawful deduction of wages', and be taken to an Employment Tribunal by the employee.