Employment law - Sickness

Quite often, there is a contractual right to sick pay whereby the employer spells out what the employee is to receive when sick and over what period. In the absence of a contractual provision, employees are entitled to receive Statutory Sick Pay (SSP) from the employer. The entitlement limit is, generally, 28 weeks in a 3 year period.

The qualifications for SSP are that an employee must:

• Have 4 or more consecutive days of sickness (including Sundays and holidays) where he is incapable of doing his work.
• Notify the absence to his employer.
• Supply evidence of incapacity (such as self-certificate or doctor's certificate).

There are a number of excluded employees who are not entitled to receive SSP. These include employees over the age of 65 on the first day of sickness, those taken on for a specified period of no more than 3 months and employees who are pregnant and go off sick during the maternity pay period. This is not an exhaustive list.

Any contractual remuneration paid to an employee for a day of sickness is to be offset against the SSP due for the same day. An employer can never pay the employee an amount in total which is less than the SSP due.

What happens where an employer dismisses an employee as a result of the employee's sickness?

Where there are cases of the employee's long term ill-health, which makes the future performance of the contract of employment impossible, the contract may be considered to have been "frustrated" and the employee will in these circumstances be deemed not to have been dismissed. This however is extremely rare.

If an employer is to safeguard itself against a claim for unfair dismissal, an employer should go to some length to find our the current medical position which would involve consultation with the employee's medical advisors and possibly have an employee examined. If the employer can show that it has taken these necessary steps and has properly informed itself of the state of employee's state of health and prognosis and following such prognosis the employer makes a perfectly reasonable decision to dismiss the employee, the employer is likely to have little come back.

Where the sickness consists of persistent short absences by unconnected minor ailments, the employee should ideally be told what level of attendance he is expected to attain and that dismissal may follow if there is no sufficient improvementAn employer should be careful to adhere to the correct disciplinary procedures (such as warnings) as a Tribunal could well find that a dismissal is unfair on procedural grounds, even if ultimately, the same decision would have been made had the correct procedures been followed.

The Tribunal will also consider whether the ill-health or sickness was caused by the employer's actions. This may well have a bearing on whether the ultimate decision to dismiss is deemed to be fair or unfair.