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 improvement.
An 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.
Other
aspects of UK employment law for employees include:
Landau
Zeffertt Weir Solicitors
