An estimated 137.3 million working days are lost due to sickness in the UK in each year. This equates to around 4.3 working days lost for each employee. Make sure you don't add tribunal claims to your list of worries by avoiding these common pitfalls.

1. Contractual sick pay by the back door

Your employee’s contract may only give them the right to Statutory Sick Pay but if you often pay employees in full while they are off sick you will be setting precedent for other employees and for future occasions of sickness. Anything you give your employees consistently over an extended period of time can give rise to a contractual expectation.

2. The illness may be a disability

Taking excessive time off can be certainly be a disciplinary issue, particularly if it seems to be a regular case of Mondayitis. Bear in mind though that if there is an ongoing, underlying medical condition it could amount to a disability which would mean that not only would disciplinary action be discriminatory but you would be required to make reasonable adjustments to support the employee. Under The Equality Act 2010 the criteria for disability is very wide, so best to take advice if you are unsure.

3. No absence reporting procedure

Make sure you have a clear written procedure setting out how and when your employee should tell you they are off. In the absence of this, the default rule for Statutory Sick Pay (SSP) is that an employee has seven days to tell you they are or were too ill to come into work. Clearly this is not very helpful for employers who are waiting for someone to turn up for their shift!

4. Sickness during pregnancy

In terms of payment this is treated the same as normal sick leave. Two points to watch out for though;

  • If a woman is off sick for a pregnancy related reason after the beginning of the fourth week before the week in which her due date falls, her maternity leave will start automatically.
  • Be extra cautious about attempting to discipline for excessive sick leave during pregnancy as it will be likely be more difficult to prove it isn’t genuine. Furthermore, if the illness is pregnancy related it should be recorded separately and not treated as normal absence or used to penalise or discipline the employee in any way.

5. Employees on sick leave during their notice period

If an employee who resigns or you have dismissed is off sick during their notice period there is a technicality regarding pay that often trips employers up.  

Check the employee’s contract because what you have to pay them for the notice period depends on whether they entitled to statutory notice, or whether their notice period is longer that this.

The Employment Rights Act 1996 says that if the employer is only required to give the statutory minimum notice then during his notice period while he is on sick leave you have to give the employee full normal pay. This applies even if they have exhausted their right to SSP or any contractual sick pay, so will still apply to those who are being dismissed for long term incapacity for example.

If on the other hand the contractual notice that the employer is one week or more than the statutory notice would be, there is no need to give full pay, just sick pay – SSP, contractual sick pay or nothing if these have already been exhausted.

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