First Tuesday Q&A

The claimant was dismissed by reason of gross misconduct and in particular.

An employee does not wish to disclose her illness. 9 weeks of certificates stating, “unfit for work” have been received. Can a company doctor disclose the illness to the employer or can we insist on knowing the nature of the illness or move to dismissal or some other action?

Posted in: First Tuesday Q&A NI on 08/01/2013 Under the Access to Personal Files and Medical Reports (NI) Order 1991 (the Order) an employer cannot request a report from an employee’s own doctor without the employee’s consent, which should be recorded in writing. While referring an employee to a company doctor (which we assume to be the case h...

Is it usual for an employee on a phased return after a critical illness to be paid only for the hours worked? In addition, should the employee be asked to use their untaken holidays to bridge over the gap in salary? Would this not contravene Working Time Regulations?

Posted in: First Tuesday Q&A NI on 04/12/2012 An employer must always firstly consider the contractual provisions which apply to the employee in these circumstances, as the employment contract or handbook may contain provisions about phased return. The recent case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Mrs Bagley (2012) consid...
This article is listed under the following topics:
Sickness and Absence Working Time and Leave Pay and Conditions of Employment

Is it correct that an employee can return to work on a phased return and still claim SSP? For example, they return to work Monday to Wednesday and claim SSP for Thursday to Sunday?

Posted in: First Tuesday Q&A NI on 03/07/2012 Phased return to work is a common way for employees who have been on long term sick leave to return to the workplace. However, in reality this can present some remuneration issues. The HM Revenue & Customs rules are as follows: Where an employee is on a phased return to work, they should be pa...
This article is listed under the following topics:
Sickness and Absence Pay and Conditions of Employment

We have a permanent full time employee out on sick leave. The organisation's Occupational Health Doctor's opinion is that this employee will be fit to return to work on a permanent part time 3 day week. Do we have to implement this recommendation even though the job is permanent full time (5 days a week)?

Posted in: First Tuesday Q&A NI on 03/04/2012 An employer is not legally obliged, but is usually well advised, to act in accordance with medical recommendations from an occupational health expert unless there is good reason (based on evidence) not to do so. You would therefore be expected to have good reasons to demonstrate why this recommenda...
This article is listed under the following topics:
Sickness and Absence Discrimination and Equality

An employee is off on long-term ‘sick’ and you hear on the grapevine that the employee has posted on Facebook that they are working in a different job. How do you handle this - what action can you take?

Posted in: First Tuesday Q&A NI on 06/12/2011 You should investigate this situation as a potential disciplinary matter with the potential allegation(s) being an intention to defraud and/or deception. This will involve investigating the source of the information to establish its accuracy, considering potential data protection issues, reviewing ...
This article is listed under the following topics:
Sickness and Absence Disciplinary and Grievance Issues Contracts of Employment

In relation to long term absence where you have had to employ a temporary worker to cover absence, can you request a minimum notice period before the absent employee returns to work?

Posted in: First Tuesday Q&A NI on 06/12/2011 While there is no legal right to request notice in these situations, you could ask the employee to give you a certain amount of notice of their intention to return. It is best practice, however, that this is discussed as part of your management of the long term absence situation. It is useful and a...
This article is listed under the following topics:
Sickness and Absence A-Typical Working

At what point can an employer dismiss on the grounds of capability an employee who is on long term absence due to illness?

Posted in: First Tuesday Q&A NI on 02/08/2011 To help minimise the risk of claims, an employer should generally only dismiss an employee in these circumstances once a capability procedure, including the minimum statutory dismissal and disciplinary procedures, has been fully followed. It's usually preferable to commence the capability procedure...
This article is listed under the following topics:
Unfair Dismissal Sickness and Absence Policies and Procedures

Can absence due to sickness be used as part of selection criteria for selecting an employee for redundancy or could this be viewed as disability discrimination?

Posted in: First Tuesday Q&A NI on 01/03/2011 Absence can be used as part of selection criteria. However, if it is, it is important that the reasons for sickness absence are examined to mitigate the risk of a disability discrimination claim. For example, if an employee has been absent because of disability, you may need to consider adjusting t...
This article is listed under the following topics:
Redundancy and Reorganisation Sickness and Absence Disciplinary and Grievance Issues

I have received a number of complaints that a member of staff has been coming to work with a bad dose of flu and passing it around the office. Should I have a policy in place for this scenario, and can I force this employee to go home and stay at home until fully recovered?

Posted in: First Tuesday Q&A NI on 04/01/2011 You are very unlikely to be acting unlawfully if you ask the member of staff to go home and stay at home until fully recovered, provided that you pay them for all of the time they are at home. Salaried employees are entitled to be paid their salary if they make themselves available for work, irresp...
This article is listed under the following topics:
Sickness and Absence Health and Safety Working Time and Leave