An employee has taken a month off work due to stress, but the employer isn’t convinced of their illness. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on the employee’s entitlement to sick pay.

The question:

I have an employee who has taken four weeks off work. This person is very strong and showed no symptoms of any stress, nor spoke to me whatsoever. In other words, I am not convinced this illness is real. This is my first experience of this illness, with a person who is an awkward, head-strong employee. I am still taking advice on this matter. They refused to sign our standard contract for services. Am I obliged to pay them any more than SSP?

Legal advice:

Esther Smith, partner, Thomas Eggar

This employee’s entitlement to sick pay will depend entirely on the terms of their contract. Whilst they may not have signed the contract, if they have continued to work under its terms, and both you and the employee have acted in accordance with that contract (in terms of paying salary, holiday etc) then it may be difficult to argue that any enhanced payment terms in that contract do not apply. If the employee has no contractually enhanced payment provisions in their contract, you are perfectly within your rights to pay only SSP.

I assume, due to the length of absence, that the employee has been submitting sick certificates. If not, you will not be able to process SSP payments and could treat their absence as unauthorised, subject as always to following the appropriate procedures.

I note your concern that the absence may not be genuine, but if the absence has been certified by the employee’s GP, it will be very difficult to challenge this. All you could do, if you wanted to take some more proactive steps, would be to ask the employee to see an independent medical practitioner or occupational health advisor to get an assessment of their current health. However, this will cost you money, and at this stage given the relatively brevity of the absence, I think it is a bit early to be taking this step if the employee is signed off for another month.

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

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Martin Brewer, partner and employment law specialist, Mills & Reeve

If on any day your employee is incapable of doing the work he is expected to do under his contract of employment (called a day of incapacity) he is entitled to SSP subject to fulfilling three conditions. These are, put simply, that:

• The day in question forms part of a period of four or more consecutive days of incapacity
  
• The day falls within the period of entitlement to SSP (this is set out in the legislation)
  
• The day is a qualifying day (either set out in the contract or as determined by the legislation).

You are also entitled to require the employee to provide appropriate medical evidence. Should the evidence be forthcoming, then the only thing you can do is to challenge the medical evidence (the sick note) by finding counter-evidence that the employee isn’t really ill.

Martin Brewer can be contacted at: martin.brewer@mills-reeve.com

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