Sick pay malingerers can be a real drag especially with cases that are dubious and over the long-term cause administrative headaches and a serious dent in productivity and the bottom line; Daniel Isaac, partner in the employment team, at City law firm Withers explains how to deal with ill-health.
There are two types of employee on long-term sick leave. First, there are good workers to whom something unfortunate has happened and nobody begrudges their sick leave or pay.
Secondly, there are those whose leave is highly suspicious. Perhaps they are subject to disciplinary proceedings and have claimed to be stressed, creating a vicious circle in which they are not fit to work until the charges are dropped but they cannot be permitted to return to work until the charges are dealt with.
Or, perhaps, there is nothing wrong with them at all! Employers want to treat these two types of employee differently but do not wish to be penalised for doing so.
The most powerful weapon when dealing with unmerited sick leave is sick pay. While a contractual period of sick pay can be an attractive perk, some say it attracts the wrong type of employee! Furthermore, it allows employers little leeway for dealing with malingerers.
Of course, making sick pay discretionary is not the entire answer to the problem. We know from bonus cases that, when an employer exercises discretion, it must do so in a ‘bona fide and rational manner’ and must not do so ‘perversely’. An employer should always carefully document reasons for not awarding sick pay in order to deal with any contractual challenge.
In addition, the Disability Discrimination Act 1995 (‘the DDA’) must be considered. Although this does not require sick pay to be paid to disabled employees, an extended period of sick leave should at least be considered as a possible reasonable adjustment to facilitate their continued employment.