Here are a couple more of the questions – and our outline answers – following our recent webinar on Managing Long-term Sickness Absence.
Today we address the following:
- On a phased return to work, is an employee entitled to sick pay (Company or SSP) for any hours/days they do not work?
- What if an employee cannot come back to work full-time or if they just want to work full-time from home?
On a phased return to work, is an employee entitled to sick pay (Company or SSP) for any hours/days they do not work?
This is a question that crops up frequently.
When it comes to SSP, assuming the employee has not exhausted their entitlement to it, it may be difficult for the employee to continue to claim for this – it will depend on the phased return to work arrangement. For example, if an employee returns to work on a part-time basis and their non-working sick days are spread out over the week they are unlikely to be eligible for SSP because of the rules governing waiting days and periods of incapacity for work.
If an employee works their normal days but on reduced hours, they will not be eligible for SSP for the non-worked hours on those days because these days will not count as days of incapacity for SSP purposes. The government previously indicated it was looking to amend the SSP rules to enable employees returning to work after a period of sickness absence to have a flexible, phased return to work (so reducing sickness absence overall) but any changes to the SSP system have been put on hold for now.
In terms of company sick pay, this would depend on the terms of the scheme. In practice, if an employee is still entitled to company sick pay, some employers continue to pay this for any non-worked hours so that the employee is not disadvantaged by returning to work on a phased return or disincentivised from doing so.
From a disability discrimination perspective, there is case law which confirms that whilst offering a phased return to work may be a reasonable adjustment, employers do not have to pay for any work not done or in excess of their usual sick pay rules. The only exception may be where the employee’s extended absence or inability to work full-time is due to the employer’s prior breach of the duty to make reasonable adjustments.
We were also asked via the chat facility whether employers can encourage employees to use up their holiday if they want to receive full pay on a phased return to work and this is certainly another option to consider. There is nothing to prevent employers from reminding employees that they could use any accrued but unused holiday to top up their pay when they are not working, if they have any such leave still available, but clearly employers should not be putting any pressure on them to do this. However, there are some question marks over whether this is really a good idea. First, it produces a distorted picture of the employee’s actual absence record which may make it harder for the employer to rely on it later as a basis for dismissal. Second, in these circumstances there may be doubts as to whether one can legally be off sick and on holiday at the same time. If the actual reason for the absence is illness, it could be argued that the employee had not in fact been taking holiday, such that their right to take it “again” at a later date was preserved.
What if an employee cannot come back to work full-time or if they just want to work full-time from home?
If an employee is unable to return to work full-time due to a health condition, then as we explored during the webinar, the employer should consider what adjustments could be made to facilitate a return to work. Is it practicable for the employee to return to work on a part-time basis or to work part/all of the week from home? This might constitute a reasonable adjustment, for disability purposes or otherwise. If it is not practicable for them to do their current role on a different basis, then the employer should consider whether there are alternative roles available.
Clearly much will depend on the nature of the employee’s role, the medical advice about what they can and cannot do and whether they are disabled – in which case the employer must comply with its additional obligations under the Equality Act 2010. But do also keep an eye on the parallel provisions of the flexible working regime. If the employee seeks full-time work from home or part-time working as a formal flexible working request, whether on medical grounds or not, the employer should only reject that request for one of the eight business reasons set out in the legislation.
In broad terms, what all of this boils down to is that the employer will need a ‘good reason’ to refuse a request of this nature.
If you missed Part 1 or 2 of this series it’s available they are available to read here: