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Absence due to Illness

When an employee calls in sick, generally you will accept what the employee tells you and record their absence as sick leave. However, if you have any concerns over the genuineness of the absence, then you need to raise that with the employee as soon as practicable and not wait for them to return to work.

You should ensure that any action you take to support or challenge an employee with an illness or injury that you follow what is in their employment agreement.

The Holidays Act 2003 allows for employees to take sick leave either for their own illness or injury or to care for a person who is dependent on them for care because that person is ill or injured.

If you have a concern over how genuine a person is when they take sick leave, the Holidays Act allows the employer to request the employee provide proof of their sickness or injury if the employee is going to be absent for three or more consecutive calendar days, even if those days are not all working days. The employer may also request proof within the three days provided that they do so as early as possible and agree to pay reasonable expenses for the employee to obtain that proof.

Proof can be a medical certificate from a medical practitioner stating the employee is not fit to attend work or because they are looking after someone who depends on the employee for care who is sick or injured.

The problem for employers is that an "unfit for work" medical does not tell you anything about what is wrong with the employee.

If, despite getting an "unfit for work" medical, you still require further information, under section 68 (4) (a) you can require the employee to establish that there are no relevant health and safety reasons or hygiene reasons that would prevent the employee working.

The best way to seek this additional information is to first obtain the employee's consent for their medical practitioner to share information about their current illness or injury with you. This requires a signed consent form from the employee.

It is also recommended that you write to the employee's doctor explaining what you understand to be the situation with the employee, explaining the type of duties the employee does in their job and seek information from the medical practitioner about how the employee's condition prevents them doing their job and/or what accommodations you might need to make in the short term to enable the employee to return to work, along with any restrictions on what or how they work so that you do not exacerbate the health of the employee or risk the health or safety of the employee and those they work with.

Any letter to the medical practitioners should be shared with the employee so that there are no surprises as to what you ask of the practitioner. Once you get the medical practitioners report back, the next step is to sit down with the employee and discuss what that means for them being back at work.

The employer does not have an automatic right to send the employee to a medical practitioner of the employer's choice, however if you require a second opinion you can do so with the agreement of the employee.

Some traps to watch out for:

Just because an employee may be off sick does not mean that the employee has to be house bound. They are entitled to still move around, depending on their health. They may need to go to the pharmacy, visit their doctor, get some groceries.

Being spotted on the beach or playing golf on a day of sick leave, while not an ideal good look for the employee, does not automatically mean they are pulling the wool over your eyes. Some conditions can be improved by the fresh air and/or exercise. It would be a different story if they were seen partying at the local pub when they say they were off with a migraine. If you have any concerns over what an employee was doing on their day of sick leave, you should speak to them to get their reason as to why they were out doing what they were doing, but keep an open mind as to what they might tell you.

Where an employee has been invited to a disciplinary meeting and then reports in sick, you need to tread carefully. While the employee may be using sick leave as a stalling tactic to delay the disciplinary meeting, they also could be genuinely sick. If they are genuinely sick you will need to wait until they are well enough to meet with you. However, even then, you can put limits on how long you are prepared to wait. If an employee continually puts off meeting under the guise of illness (generally stress) seek advice on how to proceed and when to draw a line in the sand over unreasonable delays. As stated above, where you doubt the genuineness of the absence, you need to challenge this as early as possible and seek further information before you make any decisions on proceeding.

While this may frustrate you, it is better to allow a reasonable delay for the employee to be fit to talk with you, otherwise you may be disadvantaging the employee by insisting they speak to you when they are unwell.

McKone Consultancy can help you work through issues relating to sick leave. Get in touch with us today for a no obligation chat on how we can assist you.

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