FAQ

We have an employee who wants to have time off for laser eye treatment? What are our obligations towards him?

There is no general entitlement for employees to have time off for medical treatment that they elect to undergo. Therefore it is up to you as an employer whether you allow the employee time off or whether the employee should take the time off as holiday. If the employee is to take the time off on holiday, then under the Working Time Regulations the employee is only required to give twice as much notice as the amount of time off he requires. This means that if the employee needs one day off for the treatment itself, he only needs to give two days notice, subject to any other notification provisions your holiday procedure has.

Although the employee may not be entitled to time off for the treatment itself, it is likely that the consequence of him having the treatment will make him unfit for work. Where this is the case, then the employee would be entitled to Statutory Sick Pay provided the notifications have been complied with. It doesn’t matter that it is through elective medical treatment that the employee is unwell. Whether the employee is entitled to contractual sick pay will depend on what your Company sick pay policy is but you need to ensure that you operate your policy consistently and without discrimination.

Remember, the fact of the employee’s medical treatment must be kept confidential unless the employee consents to its disclosure. It may that the employee does mention to his colleagues that he is undergoing such treatment. If the effect of his treatment might be obvious when he returns to work e.g. there may be some bruising etc or he has to wear an eye patch, then it is sensible to discuss this with the employee how best to forewarning his colleagues prior to his coming back to work. Where it is obvious the employee has had some treatment, or it becomes known, there is a risk that other employees may make inappropriate comments. As an employer you need to take such steps as are necessary to ensure that the employee is not subjected to any bullying and/or harassment and take appropriate action should offensive comments be made.

Our employee booked a 2-week holiday but has failed to return and claims to be sick. What should we do?

If an employee claims to have become ill immediately following annual leave, this inevitably raises suspicions that they may be doing so dishonestly to extend their time away from work.

Claiming to be incapacitated and claiming Statutory Sick Pay or company sick pay when not in fact unwell, can be a serious disciplinary offence and may amount to gross misconduct in some circumstances.

If you suspect that an employee has deliberately overstayed on holiday, and is not in fact sick, the best way forward is to hold an investigatory meeting as soon as they return from leave. Some issues to consider, to place the late return in context, are:

• What is the employee’s length of service? What is their disciplinary record like generally?
• Does the employee have a chronic health condition or disability? Did you know the employee was unwell before they travelled?
• What is the nature of the illness claimed? What treatment was prescribed? Is the employee able to show you a prescription or treatment plan?
• Had the employee overstayed on holiday or incurred any unauthorised absences before?
• Did the employee initially request a longer period of leave that was refused? Can the employee show you a copy of their flight ticket/booking to confirm when they were due to return?

The employee may present you with a medical certificate at the investigatory meeting. A recognised UK medical certificate, covering the period of unauthorised absence, should usually be accepted as proof that the employee has been absent due to sickness.

However, if the employee provides you with a non-UK medical certificate which you do not recognise, you are not obliged to accept this as conclusive proof of sickness absence. You may wish to take steps to establish whether the certificate is genuine (e.g. by contacting the issuing clinician abroad) but this may be practically be very difficult to do. You may prefer to focus on the other available evidence instead and consider whether this points towards a premeditated overstay that might merit disciplinary action.

Can I dismiss an employee on long-term sickness absence?

In certain circumstances, it may be appropriate to dismiss an employee who has been absent from work on a long-term basis due to sickness. There is no statutory fair reason for dismissal relating solely to ill-health, but an ill-health-related dismissal could fall under one of the existing statutory reasons, e.g. most commonly capability some other substantial reason (SOSR).

Employees with at least two years’ continuous service have the right not to be unfairly dismissed, and employees with disability-related sickness absence are protected by disability discrimination legislation (even if they have been employed for less than two years). This means that if you do dismiss an employee who meets either or both of these criteria, you must tread very carefully.

In order to fairly dismiss an employee on the grounds of long-term sickness absence, you must ensure that:

• the employee’s sickness absence is the only or principal reason for dismissal
• you carry out a fair procedure leading up to the dismissal
• it is reasonable to dismiss in the circumstances.

A fair procedure will usually involve:

• An ongoing consultation between your organisation and the employee, taking into account medical evidence, potential adjustments, and potential alternative duties; and giving suitable periodic warnings about potential consequences, including the possibility of dismissal if the sickness absence becomes unsustainable.
• Obtaining up to date medical evidence about the employee’s condition and prognosis at appropriate intervals.
• When dismissal becomes a possibility, timely consideration regarding alternatives to dismissal, e.g. flexible working or transferring the employee to a suitable alternative role.
• Considering ill-health retirement where appropriate.

It is possible to dismiss an employee on long-term sickness absence but do proceed with caution and ensure that the above criteria are satisfied. If in doubt, seek advice from your HR Rely advisor

What measures can I take to prevent employees from suffering work-related stress?

A report by the Health and Safety Executive found that stress, anxiety and depression caused half of all work-related illness in 2021, with 850,000 workers having suffered a new case of work-related ill health in 2020/2021.

Commercially, it is in your business’s best interests to protect employees from work-related stress, and to offer appropriate support where stress becomes difficult to manage. Moreover, you have a duty of care as an employer to ensure the health, safety and welfare of all employees, so far as is reasonably practicable.

In order to discharge your duty as an employer and reduce the risk of your employees suffering from work-related stress, you may choose to take the following steps:

• Implement a mental health and wellbeing policy. This might include provisions to:
  • promote open communication between staff and management
  • bear in mind stress and mental wellbeing when allocating workloads
  • ensure staff are not overworking by monitoring hours
  • carry out risk assessments
  • facilitate flexible working where possible.
• Provide training to management on stress management and mental wellbeing and how to properly support employees suffering with work-related stress and mental health problems.
• Ensure that an anti-bullying/harassment policy is in place, firmly stating that your business has zero tolerance for behaviour of this kind.
• Offer employees training on personal stress management and promote access to other wellbeing support services through your Employee Assistance Plan if you have one.
• Create a ‘break-out’ space for employees to relax and chat informally.

Employees who are happier and less stressed are likely to be more productive, and an emphatic commitment to supporting staff is highly likely to impact positively on recruitment and retention. Implementing and communicating a stress-management programme will also put your organisation in a stronger position if the worst happens and an employment tribunal claim is made.