How to deal with employees pattern of absence when on SSP entitlement?Posted in : Seamus Says - Employment Law Discussion on 1 June 2018 Issues covered:
What would be the best way to proceed when you have an employee who uses the 28-week SSP statutory sick pay and then comes back to work until there is no join period again and then goes for another 28 weeks?
Scott: Okay. We have somebody here. I supposed it's inferred that somebody is swinging the lead here, Seamus. What would be the best way to proceed when you have an employee who uses the 28-week SSP statutory sick pay and then comes back to work until there is no join period again or it's usually six weeks, I think, there has to be as a break and then goes off again for another 28 weeks, comes back again after the 28 weeks and is now off again. So, there's a three big jumps period where they get statutory sick pay, they come back enough to establish it and they're back at work. They pay their stamp, they qualify for SSP again. It's a completion here of two different things. They're entitled to a benefit, which has got nothing really to do with employment so is the pay to national insurance. But what the employer's got here is somebody who clearly doesn't want to be at work. It would appear, right?
Seamus: Yeah. It would seem that way.
Scott: Only comes in so that they're long enough to qualify so they can go off sick again.
Seamus: Yeah. It's a red flag. I think it if happens once, it's an automatic red flag for employers, certainly. I do get a lot of queries about this, and people wanting a magic wand in order to stop it from happening. I think the practicalities are this is about attempting to manage a period of sickness. I think the practical steps for anyone out there is you're looking at regular welfare meetings in relation to the employee, you're not leaving huge gaps in terms of the employee sickness that you're not waiting towards the end before meeting up with them again. That you're doing that continually and you're keeping on top of the employee and you're getting an understanding of what the illness is and what the likelihood of them returning is.
Scott: Yeah. Just because they're entitled to 28 weeks SSP doesn't mean to say you have to wait 28 weeks to take any action.
Seamus: Certainly you don't want to get to a point where you're deemed to be harassing the employee. It is a good idea maybe to look at whether that's on a monthly basis or every six weeks or something like that. I think also you have to look at the circumstances. If somebody has a serious debility and you know that they're not going to be fit to come back within three months, it's always good to keep in touch with them, maybe not necessarily having a welfare meeting, but keeping in contact with them, especially whenever you're concerned that they may be taking steps to come back for a short period in order to go off again.
The other thing is to keep on top of your medical evidence and keep an eye on the sick notes that are coming in, and look to the GP for reports, if necessary or from their consultant if they're in consultant care, or again, just independently, through occupational health, which is usually the best way to go in relation to that. If you do get an occupational health report, or you do get a medical in, meet with the employee in order to discuss the medical, often the employee will say, "Look, I've seen that in advance before it went to you. I know what it says. I don't need to meet with you."
It's important you do meet because there could be details within the medical report you do need to discuss and also might help the employee to return. Where there is a proposal to return, I think there are three things that you can do. Number one, always get a fit note in terms of that if they've been out for a long period, you're entitled as the employer to have a sick note from the doctor.
Alternatively, you can send them back to occupational health for confirmation that they're fit to return. And always have that return to work meeting and to discuss the possible adjustments that might be needed or if there's a phased return or whatever there is.
I think the last step in the relation of that is upon their return, monitor the employee, make sure they are attending work, that they're on time, there isn't any sign that they're going to be off. Their motivation is high. Where there is issues in terms of the employee and you know that the employee is simply back for a couple of days, or they're back in for a number of weeks in order to get their entitlement again, you can look at this, take a step back from it, and look at it over a long-term sickness period. If your triggers have been hit in respect of your policy and procedure for absence, don't shy away from your disciplinary policy and decision.
Scott: Yeah. The fact that it's happened in the past shows a pattern. Don't be afraid to say ‘there is a pattern here’.
Seamus: Absolutely. You'll be very quickly able to establish that certainly if you're on the third go-round that this query is about. There's an established practice that's happening with the employee and what I would be doing in any kind of letter out to the employee inviting them into disciplinary, I'd be setting that out clearly in black and white and saying here's the pattern that is happening. We need an explanation of it at the disciplinary.
More on Absence and Sickness
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.