An employee sustained whiplash in a car accident and has weekly osteopath appointments. He works 9am to 5pm and the latest appointment he can get means leaving work at 3.30pm. He works as part of a small team who are finding it difficult to cover for this weekly absence. Does he have any right to time off or can I insist that he either makes up the time or takes it as annual leave?
Staff have a number of rights in relation to periods of ill-health. They may have a right to sick leave (depending on their prognosis) and are entitled to relevant protections under health and safety legislation.
If the employee’s condition is likely to last for 12 months or more, they may be classified as disabled under the Disability Discrimination Act 1995. It is unlawful for an employer to discriminate against a disabled employee by dismissing them, or subjecting them to other detriment. In addition, disabled staff are allowed time off for medical appointments connected with their disability.
In respect of one-off medical appointments where the individual is not disabled, the employer is not, as a general rule, required to allow an employee to take time off work. You may therefore insist that the employee:
- only attends appointments out of hours
- takes annual leave to attend appointments
- makes the time up later.
This position may be altered by health and safety considerations, common law duties, the employee’s contract of employment, and/or your policy on sickness absence.
It may be necessary to put in place temporary cover to safeguard the welfare of other staff and in particular to prevent employees covering the absence by working excessive hours.
It’s important to anticipate such situations and have clear policies in place to deal with them. Full and frank discussions between you and your employee should be encouraged from an early stage and they should provide you with genuine medical evidence to explain their condition and its likely duration. It may also be sensible for the employee to resume work on a part-time basis and receive more intensive osteopathy.
Karen Black, partner and head of employment, Boodle Hatfield.
Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail natalie.cooper@rbi.co.uk
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