DairyCo

Illness

Published 31 August 10

Legally-defined sick pay

Employers are bound by law to pay Statutory Sick Pay (SSP) to eligible employees who are off work through illness, unless they pay wages or contractual sick pay to their employee for the same days that they would be entitled to SSP if it is more than or equal to the current rate of SSP.

To be eligible an employee must:

• Notify their employer of their sickness within any contractual time limits or no later than seven days after the first day of sickness if no contractual limits exist.
• Have done some work for their employer under their contract.
• Be sick for four or more days in a row, including weekends and bank holidays.
• Have average weekly earnings more than or equal to the lower earnings limit for National Insurance contribution purposes.
• Have earnings on which they are liable to pay Class 1 National Insurance contributions, or would be liable to pay but for their age or level of earnings.

Should they fulfil the above criteria, part-time, temporary, agency or casual workers may be entitled to SSP.

In order to clarify how absence is to be dealt with, it may be advisable to have an absence policy as part of the employee's contract of employment or included in a staff or company handbook.  An example policy can be found here.

Statutory Sick Pay:

• Is paid at a daily rate for maximum of 28 weeks in any one   period of incapacity for work.
• Should be paid on the same day that employees normally receive their wages for the same period.
• Should be paid once an employee has been sick for at least four calendar days in a row. SSP is not paid for the first three 'waiting' days.

Within limits an employer can set up their own rules about how employees inform them when they are sick. Self certification form SC2 is for employees to certify themselves as sick for the first seven days of sickness for SSP purposes, after which a Medical Statement - now known as a 'fit note' - from a GP is required. Alternatively, employers can use their own self-certificate form but must always maintain basic records of sickness absence and amounts of SSP paid.

In addition to SSP, the Agricultural Wages Sick Pay scheme provides a payment of at least the minimum agricultural wage for employees unable to work due to any illness including illness related to pregnancy or maternity, or due to an injury that occurred while at work or on the way to or from work. Entitlement to AWSP is based on the employee's length of service with the same employer, requiring a minimum service of 12 months before entitlement arises and the amount paid includes any payment of SSP.

Many of the rules for AWSP are broadly the same as for payment of SSP, including:

• The requirement for an employee to inform their employer of their illness.
• The need to provide written evidence in the form of a Medical Statement where the period of sickness lasts longer than seven days.
• No payment of AWSP for the first three days of sickness.

The AWSP scheme is covered by the Agricultural Wages Board Order in detail and advice on SSP is also available from Business Link.

In Scotland:

In Northern Ireland:

Sick notes & fit notes

Medical Statements, previously known as 'sick notes' were changed in April 2010, and are now promoted as 'fit notes'. The main changes include:

• Amending the format and content of the note so that doctors are able to indicate whether they believe their patient is 'unfit for work' or 'may be fit for work'.
• Enabling doctors to record further information about their patient's condition so employers can consider simple changes to aid employees to return to work earlier by providing advice about the effects of the patient's health condition and, if appropriate, some suggestions about the types of adjustment or adaptations that could be made to help an employee back to work.

Employers are not forced to act on the doctor's advice in a 'may be fit for work' statement but it could assist an employee's return to work and reduce sickness absence. If the necessary changes cannot be made to support an employee's return to work, for sick pay purposes the statement should be regarded as if the doctor had advised that the employee is 'not fit for work'. The obligations to pay statutory sick pay and make reasonable adjustments under the Disability Discrimination Act 1995 have not changed.

See more information on fit notes

Performance and capability issues

An employee may be incapable of doing their job to the required standard due to genuine long-term ill health preventing them from attending work for a long period of time, or frequent bouts of short-term sickness resulting in an inability to regularly attend work.

In this situation employers should:

• Investigate and monitor the employee's absence record.
• Consult the employee regularly to find out about their health and likelihood of return to work.
• Set time limits on assessing the situation.
• Let the employee know if their job is at risk, and why.
• Obtain medical reports with the employee's permission (letter templates requesting medical information can be found here)
  
• Consider adjustments to the employee's job to allow a return to work.

In these instances dismissal should be a last resort to avoid an unfair dismissal claim. Fair and proper procedures must be followed:

• The illness may amount to a disability, and an employer is obliged under the Disability Discrimination Act 1995 to make reasonable adjustments so the employee can carry out their job. For help to define disability got to Business Link. Government programmes, such as Access to Work, can help assess the situation and suggest reasonable adjustments. A grant towards the cost of any adjustments may also be available.
• Periods of absence due to a pregnancy-related illness must be discounted when taking action over an employee's absence record.
• Drug or alcohol addiction should be treated similarly to any other serious illness. If an employee does not accept that they have a problem or seek help, however, the issue may become one of misconduct.
• Changes could be made in order keep an employee with a long-term illness by reorganising the work, redesigning the job or altering their hours of work. It is good practice to ask the employee what reasonable adjustments might help them to remain in work.