Rebecca Wormald gets legal guidance this week from Sarah Bird, employment law expert, Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on the legalities of forcing someone to take sick leave.
The question:
If an employee is not fit to do the work s/he is contracted to do but does not wish to sign off sick and insists on attending work, can an employer send the employee home on sick pay if there is no meaningful alternative work that they can do? i.e. say a driver who has a broken leg.
The answers:
Sarah Bird, employment law expert, Browne Jacobson
There are limited circumstances when an employer can suspend an employee on medical grounds. Suspension is possible under certain health and safety regulations. For example where continued exposure to a substance specified in the regulations, such as lead and ionising radiation, would endanger the employee’s health. If an employee is suspended under these regulations they are entitled to receive their normal pay for up to 26 weeks.
If an employee is unfit to do their job, the employer can request that they go home on sick leave.
However employers need to be certain that the employee is unfit to do their job before making such a request. Depending on the sickness or injury it may be difficult to prove that the employee was unfit to be at work. If possible the employer should arrange for the employee to see an occupational health adviser.
If it is company policy to pay only statutory sick pay the employee will lose pay if they are off sick and this may be why they want to remain at work.
If the employee continues to refuse to take sick leave and all reasonable attempts to request that sick leave is taken have been made, the employer may have no option but to consider taking disciplinary action against the employee. This would be on the grounds that the employee has failed to comply with the employer’s reasonable request.
Sarah can be contacted at: sbird@brownejacobson.com
Martin Brewer, is a Partner with the employment team of Mills & Reeve
If a driver breaks his leg he is clearly unable to perform the duties he is employed to undertake (unless his contract says something else). In these circumstances he is unavailable for work and unless he is in receipt of sick pay will not be entitled to his normal pay.
Sections 151 to 154 of the Social Security Contributions and Benefits Act 1992 apply here. These essentially say that where an employee is incapable of work due to ‘incapacity’, provided the following conditions are fulfilled, the employee is entitled to SSP.
The conditions are:
- The day of incapacity in question forms part of the ‘period of incapacity’ (which means any period of 4 or more consecutive days.)
- The day of incapacity in question falls within the ‘period of entitlement’ (which means any one of a number of things: the day the employee ceases being incapable, or the employment terminates etc.)
- The day of incapacity in question is a ‘qualifying day’ (basically a qualifying day is a day on which the employee would work but for the incapacity).
There is, as you can see, no requirement for a sick note although employers routinely ask for this.
I think that you may be confused by this lack of a sick note. Sick notes are covered by the Statutory Sick Pay (General) Regulations 1982. Essentially, as I say, you don’t need a sick note to pay sick pay. As I have set out above, provided the employee is incapable of carrying out his duties by reason of incapacity and the conditions are met, he is entitled to sick pay.
However, there may be circumstances in which an employee is apparently not incapacitated but is nevertheless entitled to SSP. Regulation 2 covers this. It says that where a person is not incapable of work of which he can reasonably be expected to do, he is nevertheless deemed incapable of work if he is
- a. under medical care;
- b. has a sick note; and
- c. in fact does no work.
Martin can be contacted at: martin.brewer@mills-reeve.com
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