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Ask the expert: Off sick or working from home?


Ask the expertAn employee has called in sick, yet is still working from home and his line manager is discussing work via email. Esther Smith and Martin Brewer advise on the employer’s duty of care in this instance.

The question:

Last week a member of staff called in sick, then sent an email telling us he was working from home while unwell. I don’t know if the employee felt obliged to work or not. On the second day of sickness, his line manager was discussing work by email. Where does that leave us legally?

Legal advice:

Martin Brewer, partner, Mills & Reeve

A sick employee is one who is not working as a result of either self-certification or GP-certificated sickness. A sick employee is someone who cannot carry out the duties of their work. It is of course perfectly possible to be working from home. It is also possible to feel too ill to get into the workplace but fit enough to sit in front of a computer and work.

Clearly you need to specify that working from home must be done by agreement. You may also want to say that if a person is too ill to attend the place of work then they are too ill to work per se. I just reiterate that this is not always necessarily the case.

In this case the evidence suggests that the employee was working and it looks as though his manager implicitly condoned the working from home. That being the case there seems little you can do about this. However, as I mention above you may well want to introduce a formal rule or policy (perhaps it can be included in your sickness absence policy) about home working and illness as I have indicated above.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

An employee cannot be both off sick and working from home so has to be one or the other. If an employee usually works from an office or the employer’s premises, then arguably if they are not fit to attend that place of work then they are not fit to work and should therefore be off sick. However, if the employer operates flexible arrangements that allow an employee to choose to work from home, there is nothing wrong with an employee making that election.

In this situation, the employee has indicated that they are sick and therefore generally speaking they should not be working, and the employer should not be encouraging them to work. From an insurance perspective, if an employee is deemed as unfit to undertake their duties (usually this will be due to a doctor’s certificate or, if the absence is short as it is here, the employee’s self certification of their sickness) then the employer should not allow them to continue to work as to do so could be seen as a breach of the employer’s duty of care, and the employer could be liable for any further damage suffered by the employee as a result of their continued working whilst sick.

So my view would be to stop the manager engaging in work-related discussions with the employee, and instruct the employee to cease to undertake work until they are fully fit to do so.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.


One Response

  1. What a choice!
    Absolutely do not question the legal advice given. I just think it’s a shame that these are the things employers have to worry about- it may be that the employee is committed and and wanted to work, not just felt obliged to. It may be that because he is already being paid ‘normal’ contractual sick pay, rather than SSP, it makes no odds to him, if work can be done from home, even whilst unwell to attend at work. It really does bring home how litigation wary we have become!

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