The most common reason for an employee being absent from work is time off because of sickness.
An employee who takes time off claiming to be sick when they are not ill, will be guilty of misconduct, and subject to discipline and even dismissal.
If an employee is unable to work due to illness, that is not an issue of conduct and a decision to terminate the contract just because someone is off sick too often is unlikely to be fair.
However, protracted illness can lead to the termination of a contract where it becomes impossible for the employee to do the job that he or she is contracted to do.
Dismissal will only be fair where the employer has followed a fair procedure (usually involving medical reports) and made proper enquiries to ascertain whether the employee has the capacity to work.
Only after reaching a fair conclusion that the employee does not have the capacity to work in the foreseeable future will a decision to dismiss on the grounds of incapacity be fair.
But frequent short absence due to claimed sickness is more of a problem for employers. Accurate reporting of reasons for absence is essential and disciplinary proceedings for failure to report and frequent absenteeism are often necessary.
The law does not oblige an employer to pay employees during sickness other than to pay Statutory Sick Pay (SSP).
Statutory Sick Pay
There is one rate of Statutory Sick Pay (SSP) payable for employees earning over the lower earnings limit set by the government. SSP is subject to deduction of income tax and class 1 National Insurance contributions and any other lawful deductions.
Bishopsgate Law employment lawyers provide independent legal advice about employment settlement agreements, and represent employees and employers at employment tribunals.