Employment law update - Comic Relief and Fit Notes

Aiming to raise money for Comic Relief, 'Little Britain' star David Walliams has been swimming the Thames from Gloucestershire to Big Ben in London. He wanted to complete the challenge in eight days. Unfortunately, the experience has led to him becoming unwell and he’s now suffering with severe vomiting and diarrhoea and the result could now be in doubt.

Now that we seem to have skipped from a very tepid summer to winter, I have been advising on ill health issues this week. It seems timely to remind employers of the process when an employee becomes unwell and can’t attend for work.

During the first seven days of absence, employees can self-certify their absence. On the eighth consecutive day an employee who is unable to return to work will need to supply a medical certificate (the fit note) to his employer. When an employee does not do so, the employer is entitled to treat the absence as unauthorised and to withhold contractual sick pay or statutory sick pay (SSP), though if the fit note is submitted slightly late, employers are expected to treat it as having a retrospective effect.

The employer can ask for reasonable information to assess whether the employee is entitled to SSP and can accept alternative evidence of sickness if the employee has a good reason for not supplying a fit note.

If the employee has not submitted a fit note, contact him and find out why not. If you can’t make contact or are dissatisfied with his explanation, write to the employee reminding him of the absence procedure requirements and advising of the consequences of a failure to meet the requirements. Where the employee still fails to provide certification, you can treat the absence as unauthorised and start to explore matters formally through your disciplinary procedure.

Where an employee is not fully fit for work, but is able to carry out some duties, doctors can give an indication on an interim basis about what the employee is fit to do Many employers are concerned by advice which says “light duties” and they don’t have any light duties available. You are not bound to carry out the advice. It is advisory and it is your decision how to act on the advice.

If you can’t action the suggestions on the fit note, explain this to the employee and treat the fit note as if the doctor had advised that the employee is "not fit for work". There is no need for the employee to go back to the doctor to confirm this. You could ask take advice from an occupational health advisor, or ask the employee to return to the doctor for advice on alternative suggestions for adjustments.

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You may copy or distribute this Article as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.

Russell HR Consulting provides expert knowledge in the practical application of employment law as well as providing employment law training and HR support services. For more information, visit our website at http://www.russellhrconsulting.co.uk or call a member of the team on 0845 644 8955.

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