What happens when an employee has used all of their sick leave days?Posted in : Seamus Says - Employment Law Discussion on 2 February 2018
Q: When an employee is close to the end of the number of sick leave days they are entitled to claim contractual sick pay for—an employee, in this case, came into work at 9:00 and then left at 11:00 and went home. The employer logged this as sick or is it correct it should log it as sick because they’ve done some work, a couple of hours’ work. Is this in order?
Scott: The sick leave post doesn’t clarify if you turn up that you treat that as a sick day or a work day because you’ve done some work.
Seamus: I think the position is that it is recorded as a sickness. If the person only comes into work for two hours, the reason they’re not able to continue to work any longer is due to sickness. Presumably, they’d be paid for the two hours they’re there and the remainder of the day, you’re probably going back to look at the provisions in the contract and whether there is a contractual sick pay that kicks in automatically or if it’s SSP, whether or not you’re looking at your four days in terms of before that kicks in.
Interestingly, there I suppose, the issue is will that serve as a break and start as another? For the sake of two hours, I think the sensible thing to do would be to go back and look at absences that are sicknesses-related. Are they coming from the same issue that has arisen in the first place? If they are, I would take the view that they’re related.
Scott: Or you could have something in the contract that says if you tell them it’s got to be a complete day in order to get something. So, it may come down to the contract. This one here, I think, would be where the employee has come back to work. He’s been working away and goes, “I’m close to the trigger. They’re going to discipline me.” So, trying to disappear and hope it isn’t treated as sickness, but it’s still an absence from work.
Seamus: It’s still absence. Yeah.
Scott: There should at least be a discussion. I don't know if I would fire somebody over this one.
Seamus: No. I think that you . . .
Scott: You do have a bit of leeway.
Seamus: I think you’d be wise to. But, again, within a lot of the civil service contracts, there are specified triggers in terms of absence. It really will come down to the working of the contract.
More on Sickness & Absence
- Can an employer treat maternity-related absences in the same way as standard sickness absences?
- In Brief: Important Updates from October 2018
- Mr A Hawkes v Ausin Group UK Ltd 
- Does an employee have rights while off on certified sick leave?
- Relocation of Employees; Holidays; Working Time; Certified Sick Leave; Holiday Pay; Whistleblowing; Health & Safety; and Probation
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