Sick pay
If an employer pays Company Sick Pay (CSP) (i.e. pay above Statutory Sick Pay (SSP)), the first step would be to consider whether (and how) any contractual terms relating to CSP apply to coronavirus related absence.
If there is no sick pay provision in the employment contract, consider if there is a policy and / or the custom or practice for making such payments. It will be relevant to look at how employees have been paid that are off for other types of sickness. The position may be different if someone is off work for coronavirus related reasons but not because they, themselves, are unwell (e.g. the employee is self-isolating because a family member has coronavirus). Employers should be consistent in their approach as any disparity could result in a grievance and in some cases, could be grounds for constructive unfair dismissal or discrimination. If the employee has been furloughed, the employer may continue to pay furlough pay (noting the furlough scheme is due to come to an end at the end of September 2021) or, the employer may choose to pay CSP or SSP.
Provisions concerning SSP have been amended in light of the pandemic. SSP can be paid from the first day of absence for any employees whose period of incapacity for work is related to coronavirus (provided that the self-isolation lasts at least four days). The cap on overall SSP entitlement remains at 28 weeks (only).
Employers should also be aware that at present the government is offering ‘The Coronavirus Statutory Sick Pay Rebate Scheme’ which may enable an employer to reclaim up to two weeks’ SSP paid to current or former employees for coronavirus related absence.
An employer must always act reasonably and not undermine trust and confidence. With employees commencing a return to the workplace this month and coronavirus infections continuing to remain high, it is imperative that employers put in place clear policies that set out when employees should not attend the office and what payments are available in the event of coronavirus sickness or a related absence.
Disability discrimination
There has been a great deal of discussion over the potential impact of long COVID and there remains a distinct possibility that some employees may well suffer long lasting illness and effects that could render them disabled for the purpose of the Equality Act 2010. If an employee is disabled under the Equality Act, an employer would have to consider reasonable adjustments to help the employee return to work and / or undertake their duties. For example, an employer may want to consider a phased return to work, amending an employee’s working hours or tasks and / or allowing the employee to work from home for some or all of the time. It is important that employers do not dismiss concerns raised by employees who are still suffering from ongoing impacts of coronavirus.
Taking action
If sickness absence is prolonged and an employee is unable to return to work and is unlikely to be able to do so in the foreseeable future, the employer may consider whether the employee’s continued employment is still viable and if not, whether a dismissal on the grounds of capability is justified. The employer must follow a reasonable and fair procedure before taking any decision to dismiss and medical records and / or occupational health reports are likely to be key.
If an employee is capable of returning to work but absence remains problematic and / or the employee’s conduct whilst on sick leave is problematic, further action (including possible disciplinary action) may be necessary. Clear communication of any such issues and any process or action to be taken will be essential. The employer must act reasonably, be fair, and follow its disciplinary process before making any decision to dismiss.
The Employment team at Wedlake Bell advises on all aspects of Employment law. If you are an employer experiencing issues with long-term sickness absence, or conduct or capability issues involving your staff and you need advice on any of the issues raised in this article, please do not hesitate to contact us.