Sicknotes for short-term absence

Q In recent months we’ve seen an upturn in staff taking a few days off sick, typically two or three. This is a pain for line managers and colleagues alike. My managing director wants to insist that anyone off for three days or more should have a sicknote signed by their GP or other suitable medical person. I’ve told him this may be very difficult to enforce. What can we, as an employer, insist upon?

A You can insist upon whatever you like, to an extent, subject to contractual obligations to the contrary, including the implied duty of trust and confidence. But the statutory sick pay (SSP) regime forms the basis of common practice among employers, even for contractual sick pay.

According to the Directgov website concerning SSP: “Your employer cannot ask you to provide a sicknote for the first seven days that you are sick. They may ask you to fill in a self-certificate…”.

This is because sicknotes must be provided free of charge under the SSP regime. However, there is no legal justification for such a comment outside of the SSP arena.

Employers can insist on staff providing sicknotes after three days absence or less if:

• The employment contracts allow this, or the employees agree. Or, any contractual rights are amended by following the usual due process for unilateral changes. Basically, consult, agree or dismiss with right of appeal, then re-employ on new terms if agreement not reached, with obvious unfair dismissal and possible disability discrimination risks. Consultation would include explaining the impact of sickness absence on the business and colleagues.
• The employer provides contractual sick pay in excess of SSP – for example, for the first three days of absence and/or at rates exceeding SSP.
• When only paying SSP, the employer pays for the sicknote.

Insisting on a GP’s sicknote too soon – ie, after one day’s absence – is likely to be unworkable. In the absence of a clear express contractual provision allowing this, such insistence may also be a breach of the implied duty of trust and confidence owed to employees.

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Fit notes are due to replace sicknotes in spring 2010 and consultation began in May. While fit notes may be intended to reduce sickness absence, it is likely that the seven-day SSP period will be maintained. If it is, the above observations might still apply.

Craig Havard, partner, Moorcrofts