21 December 2018 | Markel Law

    Too ill to work, too broke not to

    Amongst other recommendations in the report are for the Government to consider how it can introduce flexibility that encourages preventative part-time sick leave, as well as phased returns to work in its review of Statutory Sick Pay.
    It advised that employers should also consider providing this flexibility within Contractual Sick Pay schemes. The report comments that the financial pressures against taking time off when unwell, mean that employees may attend work when not fit to do so, which affects work productivity and the prospects of recovery.
    In most cases, a person’s replacement income will be less than their usual paycheck. This is unless the employer operates a contractual sick pay scheme (there is no obligation for employers to provide sick pay beyond the statutory rate), or provides group income protection insurance for long-term sickness absence (the report states that only 7% of the working age population have this insurance). The report identifies that the UK is one of only three EU member states that provides a flat rate of sickness benefit. Statutory Sick Pay, which is currently paid at a flat weekly rate of £92.05, is low compared to other European Nations, where wages during sickness absence are typically linked to prior earnings.
    In terms of the prevalence of work absence due to mental health, figures from NHS Digital have revealed that mental health and behavioural conditions accounted for nearly a third (32.3%) of all fit notes written by GPs in England between April 2015 and the end of March 2018.
    Mental health problems in the workplace have received a lot of political attention in recent years. On World Mental Health day, which took place on 10th October, the Prime Minister appointed a minister for suicide prevention in England and pledged £1.8m to the Samaritans, so the charity can continue providing its free helpline for the next four years.

    The business case for managing mental health at work

    Some recommended strategies for reducing mental health sickness absence and supporting employees at work (depending on the business’s size and resources and what may be reasonable to put in place) could include:
    • Training line managers on how to spot employees who are struggling with their mental health and ensuring they are aware of what support the employer can provide, or to whom they can speak (either internally or externally) for support.
    • Consideration of arranging for an appropriate person, such as a line manager or person with responsibility for HR issues, to attend a mental health first-aid course, which typically covers training on dealing with panic attacks and other mental health conditions.
    • Including details of any support available for mental health conditions in the employer’s sickness policy and managing sickness absence in accordance with the terms of the policy.

    Disability discrimination and mental ill health

    • Employers should also be mindful of the fact that disability is a protected characteristic under employment law. For a mental or physical illness to fall within the definition of disability, an employee has to show that:
    • He or she has a mental or physical impairment;
    • The impairment affects his or her ability to carry out normal day-to-day activities;
    • The adverse impact of the impairment is substantial; and
    • The adverse impact is long term (i.e. has lasted at least 12 months, or is likely to do so).

    Disability discrimination law creates a duty for employers to make reasonable adjustments for employees coming within the definition of having a disability. This may include considering alternative roles that the employee is physically able to undertake, reduced hours or other adjustments, provided these are reasonable. A failure to comply with the duty to put in place reasonable adjustments constitutes discrimination, unless the employer lacks relevant knowledge of the employee’s disability.

    Presenteeism”: Can employers permit employees who are signed off from work by their doctor to attend work?


    It is not unusual for employees who are deemed medically unfit for work on a fit note, to request that they still attend work, or for an employee to insist on remaining at work where it is apparent to the employer that an employee is not well. This resistance to taking sick leave can be for financial reasons, where the employee would struggle financially if they do not receive their normal pay, or the employee may simply feel pressured into working, or unable to take time off due to their workload.
    Should the employee wish to attend work whilst under cover of a fit note, the employer should consider carrying out a risk assessment before allowing the employee back to work and consider any adjustments to the employee’s duties or hours or work that may be required (sometimes a fit note will state an employee “may” be fit for work, where recommended adjustments can be made). This assessment of risk may also be required under the terms of the employer’s liability insurance and to reduce the risk of a personal injury claim, where the employee later finds that their condition has worsened as a result of the early return to work while certificated as unfit to work. Where there is doubt regarding the employee’s fitness to work but the employee is insistent on attending work, the employer is advised to suspend the employee from work on their usual pay, whilst obtaining medical advice on their fitness and any recommended adjustments from the employee’s GP or the employer’s occupational health advisor.

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    This feature was written in collaboration with the lawyers at Markel Law, who regularly comment on SME related matters. You can stay up to date with the latest legal changes on the Markel Law Blog, written in plain English, so that you understand the implications that is has for you as a small business owner.

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