During our recent webinar on Managing Long-term Sickness Absence, we received a number of questions via the chat facility. Our second batch of answers addresses the following questions:

If an employee is on long-term sick leave, can we insist on a Fit Note or do we rely on the fact there is no Fit Note to mean they are not fit to work?
Am I correct in saying that we cannot withhold SSP if, for example, an employee is not cooperating with our request to attend an OH appointment?

If an employee is on long-term sick leave, can we insist on a Fit Note or do we rely on the fact there is no Fit Note to mean they are not fit to work?

As mentioned during the webinar, employees should be required to provide up-to-date fit notes to cover the entire period of sickness absence (apart from the first seven days when self-certification is usually deemed sufficient; you can request a fit note for shorter periods of absence but will usually then have to pay for it yourself). Any sickness absence policy should make this clear. You should not simply assume that an employee who has not provided a fit note is not fit to work. A fit note gives GPs (and the wider category of medical practitioners who can now issue fit notes – see our recent blog) the ability to indicate when someone may be fit for work as well as when they are not fit for work. You will also need the fit note for sick pay purposes, i.e. as evidence that they are ill. Its ability to indicate adjustments which may permit a partial or expected return to work can also be useful in appropriate cases.

Any sickness policy should also ideally state that if appropriate fit notes are not provided then the company may refuse to pay any enhanced company sick pay (if it is offered) until such time as they are provided. Slight tweaks such as this to sickness absence policies can again help “encourage” employees to comply with the sickness absence procedure. Ultimately, a serial failure to provide medical evidence to support extended absence could lead to dismissal.

Am I correct in saying that we cannot withhold SSP if, for example, an employee is not cooperating with our request to attend an OH appointment?

To be eligible for SSP, employees must satisfy a number of criteria. The key one for these purposes is that they are required to give their employer notice and proof of their illness, e.g. in the form of self-certification (if seven days or less) or in the form of a fit note for longer absences. The fact they are not cooperating with a request to see your own OH advisers would not disqualify them from SSP unless and until you reasonably reach the point of no longer believing that they are genuinely unfit for work, when the obligation to pay SSP ceases. However, you need to be very sure about that since the withholding of SSP where it is properly due will amount to an unlawful deduction and most likely also a repudiatory breach of contract sufficient to justify a constructive dismissal claim. Non-compliance with internal sickness evidencing and notification rules may, however, mean the employee is not eligible for company sick pay.

As mentioned during the webinar, there are certain tweaks that employers should consider making to their own company sick pay rules to encourage employees to cooperate with them during any periods of sickness absence, and potentially withholding company sick pay is one of those things to think about. The medicinal properties of not being paid can be quite significant.  

If you missed Part 1 of this series it’s available to read here.

Employment Law Worldview