What to Do When an Employee Stays Away From Work Sick

As an employer, you have obligations towards your employees when they are away from work due to sickness. For example, you must give your employee sick leave. You must be aware of your employee’s rights when they are sick and take sickness absence, and you must carry out your duty of care towards them. Failure to do so may result in poor staff morale and, worse still, potential tribunal claims for your business.

This article will explain what rules you must abide by when your employee is sick, including when your employee takes time away from work as sickness absence and when you can force an employee to leave work due to sickness.

Taking Sick Leave

As an employer, you should know that your employees may have a right to take time off work due to being sick. This is commonly known as sickness absence or sick leave.

Your employee only needs to provide you with evidence of their sickness once they have taken more than seven days off work. The seven days includes any non-working days when they continued to be unwell. In these instances, an employee must give you a ‘fit note’ which they can obtain from their doctor.

However, where your employee is off work on sick leave for more than four weeks, this is known as ‘long-term sick’ or as having long term sickness. Being ‘long-term sick’ may affect your employee’s ability to take their full annual leave entitlement. When this occurs, you must allow your employee time to carry over four weeks of any unused annual leave. Your employee can do this within 18 months of the relevant year.

When employees fall sick during a time already away from work on annual leave or just before taking annual leave, they have the right to replace those days as days taken as sick leave. Equally, where an employee is off work on sick leave, their standard annual leave entitlement builds up.

Forcing an Employee to Leave Work Sick

If an employee is unwell, you cannot force them to take time off as annual leave when they have the right to sick leave. This applies even when the employee is already off work for annual leave. However, there are instances when you can require your employee to leave work concerning sickness.

COVID-19

The COVID-19 pandemic has caused the introduction of more rules in the workplace regarding taking time off work. There are times when an employee must leave work and take time off work to self-isolate. An employee should let you know when this applies as soon as possible. 

The rules regarding self-isolation change frequently and may change again. Therefore, you must keep yourself up to date with any changes. 

The current rules regarding when an employee must leave work to self-isolate are as follows:

• when they have either tested positive or have the symptoms of COVID-19;
• when someone they live with has symptoms or has tested positive for COVID-19, and your employee has not been vaccinated; or
• when the NHS test and trace service instructs them to self-isolate.

As an employer, you may also be forced to ask employees to leave work where they have come in close contact with another employee who has tested positive for COVID-19. In this instance, you must send your employee home immediately.

Dismissal Due to Time Off for Sickness

Where an employee is off work for more than four weeks and considered as ‘long-term sick’, you may decide to dismiss them. However, this is a last resort. You cannot treat or dismiss an employee unfairly simply because they take time off work. If you decide to dismiss your employee due to them being off work for sickness, you must justify it. You must also prove it was done fairly.

If, as an employer, you do consider dismissing your employee due to sickness, you should follow the ACAS Guide to Discipline and Grievance as part of your standard dismissal procedure. When considering dismissal due to sick leave, there are two actions you must first take. For instance, you should:

• explore the possibility of the employee returning to work with different conditions such as, for example, carrying out less rigorous work or working part-time; and
• discuss with your employee their views on the possibility of their health improving and, therefore, when they may wish to return to work.

Returning to Work After a Period of Sick Leave

Once your employee provides you with a ‘fit note’ after a period of seven or more days of sick leave, it will either state that they are ‘not fit for work’ or ‘may be fit for work’. You may take a copy of the note. 

If you receive a note stating ‘may be fit for work’, you should be prepared to make changes to assist the employee in returning, which should be discussed with the employee in advance. Where the employee does not agree to these changes, they are considered ‘not fit for work’. A doctor may also provide specific recommendations on the ‘fit note’ about how to help your employee return to work.

If an employee returning to work has a long-term medical condition or disability, you must make ‘reasonable adjustments’. These are changes made to the employee’s working conditions, such as reducing the number of hours worked or the equipment the employee uses.

Key Takeaways

Many rules surround employees’ rights to take time off work as sick leave and when you may require an employee to stay away from work due to sickness, either temporarily or permanently. As an employer, you should be aware of these rules. Not following them correctly could result in an employment tribunal for unfair dismissal. 

If you need help with rules regarding employees staying away from work due to sickness, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0808 196 8584 or visit our membership page.

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