Sick and tired — common problems facing clients off on long-term sickness

In this long form article Christine Peacock helps to advise clients off work on long-term sickness

Introduction

This article aims to help advisers provide the most appropriate advice to clients experiencing difficulties when off sick from work long-term, as well as providing tips and tactics for securing the best outcomes for clients. A companion article covers Capability and ill-health dismissal — advising clients.

Advisers will want to start by exploring the client’s circumstances to:

• understand where things are up to;
• establish what the client is hoping for from getting advice; and
• establish the best and most realistic options for them in the circumstances.

Certifying absence and supplying fit-notes

Employees off sick for fewer than seven days don’t have to give their employer a fit note. Employers should not require a fit note for fewer than seven days and GPs will not usually provide these, or may say they will only do so for a charge.

If employees are off for more than seven days then they need a fit note. A GP or hospital can provide this, but since July 2022 nurses, occupational therapists, pharmacists and physiotherapists (healthcare professionals) are also able to certify fit notes in addition to doctors, although they aren’t required to do so. Further guidance on who can issue fit notes is available at gov.uk.

Employees do need to follow their employer’s sickness absence reporting procedures, including completing any absence or return to work forms required by those procedures, or attending ‘back to work’ review meetings. Failure to follow sickness absence reporting procedures may mean an employer withholds any company sick pay clients may otherwise be eligible for. However, it may be worth challenging this, depending on the circumstances (for example, if a client was incapacitated or in hospital). It may also lead to disciplinary action on conduct grounds.

Pay issues

If clients are off on long-term sickness it is likely that they will have concerns about their entitlement to sick pay and need further advice about rights and options.

Statutory Sick Pay

You will usually want to check whether the client meets the basic qualifying conditions for receiving Statutory Sick Pay (SSP), and has followed their employer’s reporting arrangements for sick pay. There is useful information about this on our website: Check if you can get sick pay — Citizens Advice.

This is important, as some employers may deny that sick pay is payable. But it will also be important to help the client check when their SSP is due to run out, as there is a 28-week maximum entitlement and you’ll need to be able to advise clients on next steps. Employers should send them form SSP1 on or before the start of the 23rd week of receipt of SSP, notifying them of when it is due to run out (or within 7 days of SSP ending, if it ends unexpectedly).

Contractual (company) sick pay

Provided the client does qualify, they can’t get less than the statutory minimum, but they may be entitled to more. Always get the client to check their contract or any staff handbook to see if they may also have an entitlement to company sick pay. This will usually be a top-up of their SSP, typically to full, normal pay, but for limited periods, often linked to length of service. Employers can set their own rules about this and you may need to advise clients that they don’t have an automatic entitlement to company sick pay unless they have such a contractual entitlement.

Even if there is no written contract term entitling the client to company sick pay, it may be possible to establish an entitlement. For example, evidence showing the employer has always paid full pay to employees off sick in similar circumstances might help. So it’s always worth exploring this further with the client.

Company sick pay isn’t an automatic entitlement even if the cause of the client’s absence may be the employer’s fault, such as in the case of an accident at work, or work-induced stress. In these circumstances, remember to check whether the client may have a personal injury (PI) claim, which could enable them to claim loss of earnings (although this won’t result in an immediate payment for them). The client will need referring to a PI solicitor. Make sure to check whether they are in a trade union, which will usually be able to fund the cost of this. They should also check whether they may have legal expenses insurance (for example through a motor or household insurance policy).

For tips on how to advise the client about next steps if the employer is refusing to pay SSP, or is failing to pay company sick pay that appears to be due (which would count as unpaid wages), see our linked article: How can I help my client recover their unpaid wages?

Holiday pay

Another effective way of maximising the client’s income when sick pay entitlement is running out is to check whether they have outstanding holiday untaken. Holiday entitlement continues to accrue when off sick and workers are entitled to request leave at full pay while they are off sick. This might be a very important income source for a client whose entitlement to sick pay has run out, or if a client is struggling to manage on SSP. More information on if you can’t take your holiday because you’re ill can be found on Advisernet.

Benefits check

You’ll also want to do a benefits check for clients who don’t qualify for SSP, are on reduced income due to being off sick, or whose sick pay has ended. Then you can advise them about benefits for which they may qualify and secure an income where possible. They may qualify for Employment and Support Allowance (ESA). It’s important for clients to understand that their employment doesn’t end automatically when sick pay runs out — the employment relationship and all other rights and obligations continue unless or until the employer takes steps to terminate the contract.

Other benefits and compensation

Other things to explore include whether the client might have been a victim of a crime of violence, in which case they may be able to apply for compensation through the Criminal Injuries Compensation Authority (CICA): Claim compensation if you were the victim of a violent crime. Or they may have a claim for Industrial Injuries Disablement Benefit.

Keeping in touch

Clients can often present with concerns about having little or no contact from their employer whilst off on long-term sick, or complain about the employer asking them to attend meetings about their absence.

Employers have a duty to protect their employees’ health, safety and welfare and so should make and maintain contact with people off sick. This can be to:

• establish the reason for the absence;
• request ‘fit notes’;
• check if there may be something in the workplace contributing to or causing the sickness;
• try to establish the likely length of absence; or
• explore possible ‘reasonable adjustments’ if the employee may be disabled.

The usual starting point would also be for the employer to follow any sickness absence policy — so ask the client to check if there is a policy. The gov.uk website also provides information to employers on supporting employees with sickness and disability issues, including giving advice on keeping in touch.

If an employer is failing to maintain contact with the client in a way that is causing them distress, or appears to be making inappropriate levels of contact and demands for information, this can be a useful place to direct employers for guidance: Discipline and grievances at work: The Acas guide.

This also means that the client will have a corresponding obligation to cooperate with reasonable requests from the employer to attend meetings and discuss likely length of absence. The key is what is ‘reasonable’. If, for example, the client is off sick with stress or another mental health condition and feels unable to engage with meeting the employer it will often be good advice for the client to consult their doctor or other health professional about whether they are fit to attend a particular meeting. If they are unfit, this should be communicated to the employer, ideally with an indication of when they may be able to attend a rearranged meeting. However difficult, simply ignoring requests or failing to attend will not be in the client’s best interests. Clients also need to follow sickness absence policies, which may include keeping the employer updated and supplying fit-notes as a condition of receiving sick pay.

When clients have gone off sick in response to difficult circumstances, including disciplinary proceedings or linked to lodging grievances, employers may still seek to arrange formal meetings with them. The same approach applies in that the client may feel too unwell to attend, in which case medical advice about this should be sought and communicated to the employer. But employers are not expected to postpone disciplinary proceedings, in particular, indefinitely. So advisers are likely to need to discuss this with clients, including options such as seeking to postpone the hearing to a date when they may be fit, making written submissions instead of attendance in person or, in some circumstances (and only after exploring other options), employers proceeding in the client’s absence. This last option is generally not advised.

Acas also provides guidance and resources on managing sickness absence at work, which can be helpful for clients, covering holiday, sickness and leave. It’s also best practice to check if a client is a member of a trade union, which might be better placed to help them with workplace matters including grievances and disciplinary matters, as well as funding legal claims.

Occupational health and medical reports

When clients are off sick, depending on the employer’s size and resources, they may refer employees to occupational health (OH). This could be for different reasons which might include trying to establish how long the employee is likely to be off, or identifying whether the client may be disabled. This is to see if there are ‘reasonable adjustments’ the employer could be making, or considering whether some workplace issue could be affecting the employee’s health (physical hazard or workplace issues such as work pressures or bullying). It’s important to remember that even if OH produces a report saying the client is likely to be disabled, for the purposes of the Equality Act 2010 the ultimate decision about this is a legal one (determined by an employment tribunal), rather than a medical one. The Acas website contains more information about using occupational health services: Using occupational health at work.

In smaller workplaces with no OH service an employer might want to get a report from the client’s GP. OH might also request a GP or hospital doctor’s report. It’s the employer’s responsibility to request and pay for such a report, and be clear about what they are asking about. GPs will normally charge for these, as they are a service to the employer, and the client should not be expected to pay. Also, GPs are not OH specialists. They might reasonably be asked to confirm the client’s illness or condition, confirm any planned treatment, and indicate how long they may remain unfit for work. But a GP will generally not have the expertise to understand the employer’s business and employee’s duties for the purposes of confirming what type of work they may be fit for.

The employee has a right to see a doctor’s report before it is sent to the OH adviser, and a client might also want to tell their GP they want to see any report being sent to the employer. If a client is concerned about a doctor releasing information which may be highly sensitive but not relevant to the absence in question, it may be possible to explore limiting the scope of the information a doctor can disclose. Employers also have an obligation to keep such information confidential and store it securely, only using it for the purposes for which it has been disclosed.

Discrimination — disability and reasonable adjustments

In many circumstances a client off on long-term sickness absence may well be disabled, giving them additional protection from discrimination. But this can’t be assumed, as the client must meet the definition of a disabled person contained in the Equality Act 2010. The Citizens Advice website provides further details about this: What counts as disability — Citizens Advice.

It’s advisable to discuss the client’s condition with them. If the client may be disabled, then the employer has a duty to make ‘reasonable adjustments’ when:

• they know, or could reasonably be expected to know, someone is disabled
• a disabled staff member or job applicant asks for adjustments
• someone who’s disabled is having difficulty with any part of their job
• someone’s absence record, sickness record or delay in returning to work is because of, or linked to, their disability.

This might be one of the reasons for an OH referral, so the employer is made aware of a client’s disability and needs within the workplace.

Reasonable adjustments in practice

Acas’s website contains useful information about this: What reasonable adjustments are — Disability at work. The Equality Act’s Employment Statutory Code of Practice is also key here and it can be found on the website of the Equality and Human Rights Commission (EHRC). Advisers will find this helpful, and clients can suggest these resources to employers too, where it seems that duty is not being met. The main purpose of reasonable adjustments is to prevent the disabled person being placed at a substantial disadvantage and can therefore be a vital lever for clients to use if they are trying to get back to work. Advisers may want to discuss with clients what adjustments might help with this, from adjusting someone’s working hours or sickness absence ‘triggers’, to provision of equipment. It will all depend on the individual’s needs and what is ‘reasonable’, and it should be noted that an employer might be required to take a combination of steps.

For example, although an employer doesn’t have to create a role for a disabled person, they may have to consider altering a worker’s hours of work, allowing home working or providing information in accessible formats. The scope of the employer’s duty to make reasonable adjustments is quite broad, and it’s always worth asking for adjustments even when it’s not obvious that the client is disabled, if it may help them return to work and/or keep their job, which is often the client’s key priority. This might include, for example, allowing a period of home working for an employee recovering after an operation, who is unlikely to be disabled but where they may benefit from reduced travel to work during recovery.

Some further useful examples of the types of adjustments that could be made, depending on the client’s circumstances, can also be found on the MoneyHelper charity’s website at Support to help you keep your job when ill or disabled. Other specialist charities can also help, where they are relevant to the client’s disability.

Failure to make reasonable adjustments and possible tribunal claims

An employer failing in the duty to make reasonable adjustments could mean the client has a tribunal claim for disability discrimination. This is very likely to apply if the employer moves towards dismissal (usually on ‘capability’ grounds) before considering reasonable adjustments. This may also be relevant if a client has to stay off sick longer than necessary, losing pay. So advisers will want to support clients in making employers aware of this when advising about options for return to work or facing possible dismissal, in order to try to keep the client in work and secure an income for them.

Other support — Access to Work

The government’s Access to Work scheme is also intended to help workers get or stay in work if they have a physical or mental health condition or disability. It is often used when a disabled worker is trying to get a job, but can also be useful when someone becomes disabled or their condition changes. The support available will depend on a client’s needs. Through Access to Work, they can apply for:

• a grant to help pay for practical support with work
• support with managing a mental health at work
• money to pay for communication support at job interviews.

But it cannot be used to pay for reasonable adjustments, which remain the employer’s responsibility. Clients may need to be aware of this scheme, particularly in circumstances when they experience a substantial change in their health condition or disability — it is the employee who has to make the application.

Further helpful information and examples are also provided by Disability Rights UK.

Does the client want to return to work?

There is little point in advising a client to pursue arguments about an employer’s duty to make reasonable adjustments if, in reality, they don’t want to return. It’s important to make the client aware of this duty, but sometimes clients have lost confidence in an employer who has failed to engage with their attempts to return. In these circumstances, it’s necessary to ensure the client’s attempts to secure reasonable adjustments have been documented, keep an eye on tribunal time limits (which can be difficult in these cases) and advise clients about possible tribunal claims, where appropriate. More information about employment tribunal claims and time limits can be found on Advisernet.

Sometimes employers (and family or friends of the client) advise those on long-term sick, that they should simply resign, particularly if their sick pay has run out. This is not usually going to be in the client’s best interests, and they could lose a valuable claim by simply resigning. If it is clear that the employer is moving towards dismissal on capability grounds it will, in many circumstances, be better for the client to cooperate with the process and be expressly dismissed. See the part 2 article Capability and ill-health dismissal — advising clients for important information about the consequences of clients resigning.

Occasionally, clients want to return to work and their doctor signs them off as fit to return. But because of the nature of the work, the employer considers them unfit and tells them not to return. In these circumstances an employer should either refer to OH (if they use such a service) or seek permission to obtain a doctor’s report to request more information about what type of work the client may be fit for. However, while the client has been signed as fit and if they are ‘ready, willing and able’ to work, the employer is obliged to pay them normal pay in the meantime, even if they don’t offer any work. It may be worth getting clients to ask their GP for a fit-note indicating their fitness for work, even though this isn’t required. If the employer refuses to permit their return to work and fails to pay, the client is likely to have a claim for an unlawful deduction of their wages, with this having been confirmed in the case of Beveridge v KLM UK [2000].

Dismissal

Clients off sick long-term may be referred to OH for advice to the employer on their likely length of absence and prospects of returning to work. Employers can lawfully dismiss someone off sick, usually for ‘capability’. The companion article Capability and ill-health dismissal — advising clients deals with dismissals related to ill health and sickness absence, providing advisers with tips and tactics to support clients facing dismissal.

Depending on the client’s circumstances, advisers may want to read this next.

Christine Peacock works as an employment expert in the Expert Advice team at Citizens Advice

The information in this article is correct as of the date of publication

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