When an employee takes a ‘sickie’: What are your legal rights?
Colin Adamson, Head of Commercial Litigation, advises employers on the issue of employees taking absences from work.
There is a huge distinction between an employee taking sick leave - or a ‘sickie’ ie: faking illness for time off work.
In the case of an employee taking leave after feigning an illness, this can be treated as a serious disciplinary matter, potentially resulting in dismissal for gross misconduct.
Depending on the circumstances and the length of the absence, an employer is within their legal rights to investigate the matter.
The legal steps an employer can take are:
- Launch a formal investigation; request some proof of illness and/or self-certification for up to 7 days or a GP ‘fit note’ for longer absences.
- If an employee cannot provide proof of illness, company sick pay (above statutory minimum) may be withheld if allowed by the contract or policy.
- Refer the employee to occupational health to verify their fitness for work.
- Hold a mandatory interview with the employee to discuss the absence and identify patterns.
However, employers must ensure:
- A fair, reasonable investigation is conducted before taking disciplinary action.
- Caution is applied to ensure there isn’t genuine illness involved - especially if related to disability or pregnancy.
Genuine illness
An employer has the right to receive a ‘fit’ or ‘sick note’ from a healthcare professional, usually their GP, if they have been ill for more than 7 days in a row and have taken sick leave. This includes non-working days, such as weekends and bank holidays.
If it says the employee ‘may be fit for work’, employers should discuss any changes that might help the employee return to work (for example, different hours or tasks). The employee must be treated as ‘not fit for work’ if there’s no agreement on these changes.
In certain professions, the employee can use a similar document called an Allied Health Professional (AHP) Health and Work Report instead.
If employees are off work for 7 days or less, they do not need to give their employer a fit note or other proof of sickness from a healthcare professional.
When they return to work, an employer can ask them to confirm they have been off sick. This is called ‘self-certification’ and may involve the employee filling in a form or emailing details of their sick leave.
Statutory holiday entitlement is accrued while an employee is off work sick (no matter how long they’re off).
Any statutory holiday entitlement that is not used because of illness can be carried over into the next leave year. If an employee is ill just before or during their holiday, they can take it as sick leave instead.
An employee can ask to take their paid holiday for the time they’re off work sick. They might do this if they do not qualify for sick pay, for example. Any rules relating to sick leave will still apply.
Employers cannot force employees to take annual leave when they’re eligible for sick leave.
Employers must make changes to an employee’s working conditions if they’re disabled. These changes are known as 'reasonable adjustments' and could include working shorter hours or adapting equipment employees use at work.
Employees who are off work sick for more than 4 weeks may be considered long-term sick. A long-term sick employee is still entitled to annual leave.
As a last resort, employers can dismiss an employee who is long-term sick, but before they can do this employers must:
- Consider if an employee can return to work - such as by working flexibly or part-time, doing different or less stressful work (with training if necessary)
- Consult with employees about when they could return to work and if their health will improve
An employee can take their case to an employment tribunal f they think they have been unfairly dismissed.
If you are an employer who needs legal advice on this kind of issue, please contact Colin Adamson by emailing cpadamson@cozens-hardy.com or calling him on 01603 625231.