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.
What can be done if it is necessary to dismiss an employee on long-term sickness absence?
One Response
long term sick leave
I had long term sick leave due to horrendous bullying.Started grievance to stop them esculated line managers also became bullies. started july 2005 went off October 2005 suspected stroke . returned to work in Feb 2006 promises bullies to be stopped.Greivance level raised in October 2006 should of taken 28days by independent investigator not so, an insider looking at the facts and no communication has come forward dispite promises. My sick leave continued and I attended absence reviews. In October 2007 I handed in my notice of a month. HR asked me to talk I temporary withdrew my resignation to talk nothing changed but they stated ‘you will find it hard to find another job anywhere else’. I handed a second notice in on the 24th November 5 days after my meeting of the 19th November that was not fruitful so I ended my employment at end of December as I was told I was out of time for November by a union rep.However, I found out this was wrong so on the 25th November I handed another resignation letter resigning on the spot all holiday monies to be paid and all remaining sick notes to be voided. I started a new job on the 26th November as I had been offered this at the end of October but refused until I served notice. I started work and someone told me that I had to get sign off by GP so I went to GP on 6th December my GP was training another Doctor that day he was telling the Doctor how ill I had been and to be honest some of the things he read out I did not know. In my shocked state I asked him to sign me off sick leave NOT off on sick leave. He was so busy talking to the doctor he made a mistake with the white sheet and said you could not backdate to 31 November with that paper. I am still reeling about some revelations he made about my health. I took the notes scrawled on the back and posted it off without a thought. next thing I know January 10th an investigating officer from the NHS called to new place of work told my new employer made some serious accusations. Shocked apparently my stupid GP had gone into autopilot and signed me off for 3 months. The NHS were warned I may go for constructive dismissal and where trying to defame me. They stated I used 3 different names and was working for them and the new job. They denied recieving the resignation letter dated the 25th November,my doctor has since given me another signing off paper however, I have been called to an interview with them to resolve it. They overpaid me and I gave that back as soon as I knew the mistake I did not recieve a bank statement until the 11th of January so I was unaware of the overpayment. I did not recieve a payslip or a P45 even though they stated they sent it out on the 19th December even though I to their calculations did not finish until 31st December this is wrong. I reckon they are still bullying me a different way and because they are afraid I will tell about the mass bullying they are trying to discredit me. shock