HR Update on Sick Notes from Lawgistics

Employees can self-certificate themselves as sick for up to seven days. However, if an employee is sick beyond seven days (including non working days), an employer can request a fit note (often known as a sick note) from a doctor.

If the note indicates that the employee “may be able to work”, the employer will need to discuss with the employee any possible adjustments in the workplace to enable them to return. However, the employer must be mindful of health and safety. If it is not possible to have the employee return with reasonable adjustments or if they might cause a health and safety hazard, then the employer can insist on full recovery before the employee is allowed to return.

However, if the employee does not provide a sick note, it will be deemed as unauthorised absence and the employer may be entitled to withhold contractual pay (if applicable – check contract) or statutory sick pay (SSP).

The employer is entitled to reasonable information to determine if the employee is entitled to SSP; if the employee provides a good reason for not providing a note, the employer can pay; however, if the employer is not satisfied that the employee is actually ill and no evidence has been provided, payment can be withheld.
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The employer should write to the employee. The letter should include the absence policy, if applicable, and confirming that sick pay will be withheld if no note/evidence is received. The absence will be deemed as unauthorised and the employee may be subject to disciplinary action. Should the employee respond with evidence, pay should be back dated and paid.

If the employee is off work for more than a 4-week period, this will be deemed as long-term sick; however, their contractual benefits and annual leave will still accrue. Dismissing employees who are on long-term sick should be deemed as a last resort. Employers should firstly consider any adjustments, whether these are short terms or long term. This could be a change of hours or a different job role. Consultation with the employee and health professionals should also be undertaken.

If an employee is on annual leave and falls ill, this may be deemed to be sick days rather than annual leave.

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